Confirm, but don’t fish, when seeking return-to-work medical info under the ADA

The EEOC has sued Minnesota-based Cummins Power Generation for requiring an employee to submit to an alleged overly broad fitness-for-duty examination.

According to the EEOC:

In its lawsuit, the federal agency contended that Cummins required an employee to sign various medical release forms that sought irrelevant information. Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said….

“The EEOC doesn’t challenge Cummins’ request for a fitness-for-duty examination, but Cummins had an obligation to request only those medical records and information that actually pertained to that issue,” said John Hendrickson, regional attorney for the EEOC’s Chicago district. “Employees don’t give up all rights to privacy of their medical information when they get a job. By asking for all and sundry medical information, Cummins went too far.

The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA provides further explanation:

May an employer make disability-related inquiries or require a medical examination when an employee who has been on leave for a medical condition seeks to return to work?

Yes. If an employer has a reasonable belief that an employee’s present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee’s ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee’s leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.

In other words, medical information related to the employees ability to return to work is fair game upon a post-leave fitness-for-duty examination. An employer cannot, however, use the examination as an excuse for a fishing expedition into an employee’s entire medical history.

The 6th Circuit said it best in Sullivan v. River Valley School Dist. (1999), the leading case on this issue:

[A] fitness-for-duty examination … is not an excuse for every wide-ranging assessment of mental or physical debilitation that could conceivably affect the quality of an employee’s job performance. While it is true that the ADA limits an employer’s ability to request unfounded examinations to prevent “the unwanted exposure of the employee’s disability and the stigma it may carry,” an employer may order a well-founded examination…. [H]ealth problems that significantly affect an employee’s performance of essential job functions justify ordering a physical examination “even if the examination might disclose whether the employee is disabled or the extent of any disability.”

So, the moral of this story is to confirm, but don’t fish, when seeking medical information from an employee returning to work following a medical leave of absence.

Cutetallica — 4 lessons in talent management

Those of you who’ve been reading for awhile know that my 8-year-old daughter plays in a rock band. “Band” might be too ambitious of a term. She’s taken guitar lessons at School of Rock, in Strongsville, Ohio, for a couple of years, and since January has taken part in its performance program, which is known as Rock 101 for the beginner musicians. For her first set of performances in January, she was the only student, leaving her to play guitar and sing on every song. That pattern continued for her next set of shows in May, as the band added a drummer, but no singers.

Norah performed her most recent shows over the past two Saturdays. This time, even though she was joined by two other singers, she still sang lead on three of the songs (while still playing guitar), and added a new instrument, bass, on the fourth. Needless to say, she killed it (again):

 

 

So you don’t think I’m just a shill for my daughter, here are four talent-management lessons to take away from my rock star:

1. Let employees be who they are. “Cutetallica” was born out of the show director telling Norah that she sounds too cute when she sings For Whom the Bell Tolls, which, after all, is about death and the Grim Reaper. Her guitar teacher, on the other hand, liked Norah’s cute-sounding version of the song. Hence, Cutetallica. Your employees are who they are. If you want their best, don’t try to force a round peg into a square hole. Instead, let them perform while being true to themselves and their talents.

2. Push your employees. School of Rock gets it. It knows how to push kids to their limits, and recognizes that, much more often than not, talent rises to the occasion. Let your employees rise and fall to their abilities. Push them hard, and take away the safety net. They’ll surprise and delight you.

3. Age has no role in the workplace. Don’t rely on age (young or old) as a factor in your employment or staffing decisions. If School of Rock limited Norah’s ceiling by her 8-year-old age, she’d still be playing one instrument, and would stay in Rock 101 for a few more years. Instead, they allow her to take off the training wheels and succeed by her ability, not the perception of her ability based on how many years she’s been alive.

4. Talent is not a substitute for hard work. What impresses me most about how well Norah performs isn’t the performance, but all of the time and effort she puts in to honing it. Yes, I can be the nagging parent (“Did you practice your guitar today?”), but she’s the one putting in the time in her bedroom, making sure she’s going to nail her solo in About A Girl, and guaranteeing that she won’t forget any lyrics in the second verse of For Whom the Bell Tolls. Talent can sometimes leave you in the lurch, but hard work never will.

This was Norah’s last Rock 101 performance. She’s graduated to playing with the older, more experienced kids. Four months from now, I’ll be back to entertain you with the music of Joan Jett, as strummed and sung by Norah Hyman, maybe with an HR or employment law lesson to teach along the way.

---

If you’re in the area, Cutetallica has one show left, this Sunday, September 21, at 4 pm, at the Strongsville Chalet, 16200 Valley Pkwy, Strongsville, Ohio, as part of the Arts in Strongsville “Day at the Chalet.”

WIRTW #336 (the “tinder-box” edition)

If you’re a start-up in the business of selling online dating through an iPhone app, its probably best that one of your executives not be accused of sexual harassment. Thus, it shouldn’t come as a surprise that earlier this week, Tinder’s chief marketing officer resigned as part of a settlement of a sexual harassment claim levied by one of the company’s female co-founders. From USAToday:

Justin Mateen, the Tinder executive accused of sexually harassing a coworker he had dated, has resigned from the company. The resignation came as the dating startup settled the sexual harassment lawsuit from Whitney Wolfe, one of Tinder’s early employees.

Wolfe, who says she was a Tinder co-founder, alleged in June that she was pressured to resign after complaining about Mateen’s behavior which included “sexist, racist and otherwise inappropriate comments, emails and text messages.” She also claimed she was stripped of her “co-founder” title.

This is one of several high-profile cases that alleges sexist behavior in California’s tech industry.

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

Discrimination

• EEOC takes on fitness-for-duty medical releases; how to avoid the crosshairs. — via Eric Meyer’s The Employer Handbook Blog
• Can Employers Learn How to “Get Religion” From Wal-Mart? — via The Emplawyerologist
• Is Your EEOC Regional Office The Fiercest? — via Employment Discrimination Report
• Words matter when firing disabled employee — via Business Management Daily

Social Media & Workplace Technology

• Lawyer’s Duty to Preserve Social Media Evidence — via From the Sidebar
• When Employees Knock Their Bosses on Social Media — via You’re the Boss Blog
• Top 10 Social Media Mistakes Made by Supervisors — via We Know Next
• We’re All Hypocrites About Online Privacy — via Jim Norton writing at Time

HR & Employee Relations

• Compliance Services Could Save Your Background Screening Program — via employeescreenIQ Blog
• The Lost Art of Candor in the Workplace — via Lifehacker
• Germs Spread Unbelievably Fast in the Workplace — via CityLab
• How Wal-mart’s “Dress Code” Costs Employees — via Forbes
• Baltimore Ravens Failed HR 101 — via The Tim Sackett Project
• Employers, don’t commit these 5 firing faux pas! — via Robin Shea’s Employment & Labor Insider
• When to Allow Someone to Resign Instead of Firing Them — via The HR Capitalist, Kris  Dunn

Wage & Hour

• Second Circuit Finds Entry-Level Accountants Exempt From Overtime Under FLSA — via Employer’s Law Blog
• Why ‘Wage Theft’ Should Scare You — via Evil HR Lady, Suzanne Lucas
• Animation Studios Sued Over Alleged Wage Fixing — via Law.com
• Under the FLSA a late paycheck is as bad as no paycheck — via Mike Haberman’s Omega HR Solutions
• Minimum-Wage Fights Create Rift Among Cheerleaders — via WSJ.com
• NFL Oakland Raiders Settle Cheerleader Lawsuit — via Phil Miles’s Lawffice Space
• Employer Rejects Employee’s Fitness for Duty Certification, Faces FMLA Liability — via Jeff Nowak’s FMLA Insights

Labor Relations

• OSHA and the NLRB gang up on employers — via HR Hero Line
• Does Compelling Unions to Represent Non-Members Violate the Takings Clause? — via Workplace Prof Blog
• This Is What It’s Like To Sit Through An Anti-Union Meeting At Work — via Huffington Post

Do your BYOD employees understand the remote-wipe?

My kids are growing up. For example, we’ve now graduated from me having to wake them up in the morning for school and helping my son get dressed, to his big sister setting the alarm on her iPod, and both kids waking up and dressing without parental supervision. There is one area, however, for which my 6-year-old still requires help. Every now and again, I will hear the familiar cry of, “Daddy, I went poopies,” which beckons me into the bathroom to inspect, and, if necessary, aid his wiping technique.

Employers and employees are getting used to wiping of another kind—the remote wiping of employees’ personal mobile devices.

More and more employers are embracing BYOD (“bring your own device”) as a win-win for employers and employees. Employees get to use the device of their choice, without having to juggle multiple gadgets, while employers save on hardware costs. One survey I read (as cited by the Wall Street Journal) suggested that by 2017, half of all employers will stop providing mobile devices to employees and require them to use their own for work.

The use of personal devices for work, however, raises an important issue. How do employer ensure that company information is removed from a device if it goes missing or if an employee leaves the business. The answer is the employer must have the ability to remote-wipe the device to remove its data. What happens, however, if a remote-wipe compromises an employee’s personal data? I would argue that it is the risk employees take for BYODing. Employer have to be able to guarantee the security of their own information, even if it might compromise employee’s personal data.

SHRM predicts that “as state and federal regulations struggle to keep up with new technology, an employer’s ability to wipe employee personal cell phones and devices will likely be tested through the courts.” How can you best protect your organization from the risk of lawsuit by an employee who loses personal data through your remote-wipe of a mobile device? Have a BYOD policy—upon which employees place their John Hancock attesting to having read and understood the policy—which unequivocally states that:

1. the employee’s phone will be wiped (remotely or otherwise) of all company-related information if the device is reported lost or stolen and upon the termination of employment;
2. the employee understands that this wiping could result in the loss of personal data or information; and
3. the employee indemnifies the company for an loss or damage that may result from the wiping of the phone under the policy.

With those protection in place before an employee decides to use his or her own personal device for work, an employee will have a harder time challenging the after-effects of a remote wipe.

As for my son, that’s for another day…

[Image by Intel Free Press [CC-BY-2.0], via Wikimedia Commons]

We are always being watched—Ray Rice and workplace investigations

On Monday, the NFL indefinitely suspended, and the Baltimore Ravens terminated the contract of, Ray Rice after TMZ published security camera footage of Rice hitting his then-fiancée. What’s surprising about this story isn’t that the footage existed, but that it took the NFL six months to see it and act on it.

We live in a surveilled world. There are an estimated 30 million closed-circuit surveillance cameras in the United States. There are an additional 190 million cell phones with cameras. These numbers don’t account for drones in the sky and other modes of video recording. In total, there exists the potential of 220 million recording eyes watching you at all times.

It is a brave new world of workplace investigations. He-said/she-said has been replaced by “let’s go to the tape.” If you are not considering the possibility (probability?) of an alleged incident between employees having been recorded somehow, by someone or something, you cannot and should not consider your investigation complete. There is no doubt that we have sacrificed a lot of personal privacy in the name of personal security. Employers should be using this to their advantage to leave no stone unturned in uncovering the truth about allegations of harassment and other misconduct.

[Photo by Hustvedt (Own work) [GFDL or CC-BY-SA-3.0], via Wikimedia Commons]

Protected activity doesn’t protect against poor performance

Yesterday brought us two different 6th Circuit cases upholding dismissals of lawsuits in which the employees alleged that their terminations followed their exercise of protected activity.

• In Wilson v. Cleveland Clinic Foundation, the hospital fired a patient transporter for failing to follow proper procedures for moving a post-surgical patient. That incident was not her first breach of protocol, as the hospital had previously suspended her for leaving a corpse unattended in a patient room. She had filed an EEOC charge after the corpse incident.
• In Travers v. Cellco Partnership, the employer fired an employee with a history of performance problems on her first day back from FMLA leave, after she made yet another on-the-job mistake.

These cases illustrate that it is not impossible for fire an employee on the heels of protected activity. In both cases, the court concluded that there existed no factual dispute as to the veracity of the performance problems, and that each was a terminable offense.

“Terminability,” however, is the key. If an employee can show either that stated reason for the termination (1) had no basis in fact, (2) did not actually motivate the employer’s action, or (3) was insufficient to motivate the employer’s action, then the employer cannot prevail on summary judgment.

Consistency is crucial. How did the Clinic and Verizon treat other employees who committed similar violations? If the treatment is consistent, it becomes difficult for the employee to establish either of the three indicia of pretext, even if the termination follows on the heels of the protected activity.

What can you learn from these cases? Protected activity does not per se protect a poor performer from termination, provided that you can demonstrate a history of treating similarly situated poor performers similarly.

Is this the end of the independent contractor as we know it?

In Alexander v. FedEx Ground Package Sys. (8/27/14), the 9th Circuit Court of Appeals concluded that FedEx’s delivery drivers are employees of the company, not independent contractors.

The opinion’s introductory two paragraphs pretty much sum up the entire case:

As a central part of its business, FedEx contracts with drivers to deliver packages to its customers. The drivers must wear FedEx uniforms, drive FedEx-approved vehicles, and groom themselves according to FedEx’s appearance standards. FedEx tells its drivers what packages to deliver, on what days, and at what times. Although drivers may operate multiple delivery routes and hire third parties to help perform their work, they may do so only with FedEx’s consent. 

FedEx contends its drivers are independent contractors under California law. Plaintiffs, a class of FedEx drivers in California, contend they are employees. We agree with plaintiffs.

Even though this case is decided under California law, it confirms that in determining whether one who performs services for pay is an employee or a contractor, the label placed by the company is irrelevant. As noted by the concurring opinion:

Abraham Lincoln reportedly asked, “If you call a dog’s tail a leg, how many legs does a dog have?” His answer was, “Four. Calling a dog’s tail a leg does not make it a leg.” … Bottom line? Labeling the drivers “independent contractors” in FedEx’s Operating Agreement does not conclusively make them so.… [O]ur decision substantially unravels FedEx’s business model.…

This case also confirms that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors. This distinction is important, because, unlike contractors, employee are subject to a host of employment laws, including the anti-discrimination laws, workers’ comp laws, and wage-and-hour (minimum wage and overtime) laws.

While this case only covers employers governed by California law in the 9th Circuit, I would expect the filing of copycat lawsuits under the laws of different states in different courts. In other words, this case is not the final word on this issue. Thus, to answer the specific question I posed in the title to this post, while this case does not necessarily spell the end of the independent contractor, it very well could be the beginning of trend of cases leading down this path.

WIRTW #335 (the “Cutetallica” edition)

“What is Cutetallica”, you ask? It’s my daughter’s latest School of Rock band (earlier, here and here). What else could it be?

If you’re in the Cleveland area over the next three weekends, you have three different chances to see the band.

• September 6 and 13 at the Music Box Supper Club, 1148 Main Ave., on the West Bank of the Flats. Show time, 2 pm.
• September 21, at the Metroparks Chalet, 16200 Valley Parkway, Strongsville. Show time, 4 pm.

If you’re there, please stop by and say hello.

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

Discrimination

• Fair Is Fair: The EEOC Did Not “Botch” Case — via Employment Discrimination Report
• Wal-Mart Shows Employers That Ignoring Sexual Harassment Complaints Don’t Go Away When You Ignore Them! — via The Emplawyerologist
• The Goldilocks Paradigm In RIF Releases — via The Labor Dish
• When training separates the men from the women — via HR Café
• Stress-induced racism – really? — via Employment Law Worldview
• Accommodating Employee Religious Practices: A Nuanced Matter — via Minnesota Employer
• Is the EEOC off the rails with this new “wellness” lawsuit? Don’t think so. — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• “BYOD Bill of Rights” May Help Concerns about Privacy — via Abovethelaw.com
• Court won’t let jury see plaintiff’s trial-victory prediction on Facebook — via Eric Meyer’s The Employer Handbook Blog
• Millennials Increasingly Using Social Media to Challenge Harassment and Discrimination — via WinWinHR
• I Like You, You Like Me, But Companies Don’t Own the “Likes” You See — via All in a Day’s Work

HR & Employee Relations

• Fantasy Football: A Real and Present Danger to the Workplace? — via Dan Schwartz’s Connecticut Employment Law Blog
• Flaw in Employment Background Check Law is Hurting Candidates — via employeescreenIQ Blog
• Casino or Employee? Who Owns the Book of Elite Players? — via Phil Miles’s Lawffice Space
• Why this should worry you. — via Suzanne Lucas at Inc.com
• Gen Y! Start Thinking About Work-Life Issues — via Families and Work Institute Blog
• Auburn Football and HR: Why We Write New Handbook Policies To Police Morons — via The HR Capitalist, Kris Dunn
• Restrictive Covenants: Better To Ask And Disclose — via Trade Secrets and Noncompete Blog

Wage & Hour

• The War of the Wages — via The Sociable Lawyer Blog
• FLSA Exemptions And “Overtime Rights”  — via Wage and Hour Laws Blog
• FedEx Ruling: Form, Rather Than Label, Determines Independent Contractor Status — via In House
• $4.2M Settlement in Wage and Hour Lawsuit — via Overtime Lawyer Blog

Labor Relations

• Kellogg Puts on a Clinic in How to Lock Out Employees — via Matt Austin Labor Law
• Gee Whiz! NLRB says union representative required for urine test. — via Mike Haberman’s Omega HR Solutions
• Button Bans – Be Careful — via Labor & Employment Law Perspectives
• Judge Calls Out NLRB Pro-Union Partisanship — via LaborPains.org
• Fast-Food Strike Follows From Joint-Employer Rumblings — via Labor Relations Today
• US unions are shrinking. These 7 charts show what that means. — via Vox
• What Unions No Longer Do — via Harvard Business Review

6th Circuit agrees to re-hear telecommuting accommodation case

In April, the 6th Circuit issued a decision that recognized telecommuting as a possible reasonable accommodation under the ADA. Work-life balance advocates rejoiced. It seems that their revelry may have been premature.

Earlier this week, that same court agreed to rehear the case — EEOC v. Ford Motor Co. — en banc. Thus, the entire panoply of 6th Circuit judges, and not just a random panel of three, will hear the case anew.

Would the 6th Circuit backtrack on its pronouncement that “[C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home?” Or will the court take issue with the panel’s decision that a fact issue existed over whether physical attendance at the place of employment was an essential function of this plaintiff’s job? Or will the en banc panel reach the same result with a new opinion?

Stay tuned. The outcome of this case will be one of the most significant ADA cases of 2015.

[Hat tip: Robin Shea]

“Wage Theft” is a fraud (or at least a misnomer)

Forgive them, for they know not what they do.

Over on LinkedIn, my friend (and author-extraordinaire of the Connecticut Employment Law Blog) Dan Schwartz wrote a post entitled, Beware: Use of Loaded Term “Wage Theft” On the Rise. 

In that post, Dan called out the use of the phrase, “wage theft.”

It’s time for employers to beware this phrase and fight its usage because, in my view, it’s really an attempt to turn something often unintentional, into something nefarious and intentional.… In other words, the use of the phrase is being pushed to push various agendas — not as a result of any legal theory or real change in the law.… And it’s time to call it out; it’s a phrase that is both misleading and loaded.

Dan was kind enough to point out that I covered this issue last year, in a post of my own entitled, Taking issue with the term “wage theft.” Here's what I said:

I have a huge problem with the term “wage theft.” It suggests an intentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not. 

Yes, we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better. 

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age.… 

We are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win. 

As a result, sometimes employees are underpaid.

There is no doubt that our wage-and-hour laws need to be fixed. But the solution is not to craft heftier penalties for non-complying employers. Instead, we need to update our laws to account for the realities of the modern workplace, one in which the iPhone has replaced the time clock. 

Until Congress gets its act together to amend the FLSA, employee advocates will continue to push the term "wage theft" to drive an agenda. As this turn of phrase gains traction, it will focus attention on whether you, as an employer, are paying your employees correctly. These are expensive crosshairs in which to find yourself. As we round into the final quarter of 2014, make wage-and-hour compliance a priority, if for no other reason that because employees are watching, and no company is 100% error free under the FLSA.

Ohio Supreme Court punts on individual discrimination liability … for now

Earlier this summer, I reported on Hauser v. City of Dayton, which I hoped would answer the question of whether Ohio’s employment discrimination statute still provided for individual liability for managers and supervisors.

Last week, the Court issued its ruling in Hauser, and, disappointingly, punted on the issue. Yes, the employer technically won the case, and the Court held political-subdivision employees (i.e., public-sector workers) are immune from discrimination lawsuits.

On the bigger question, however, of whether Revised Code chapter 4112 imposes liability on managers or supervisors in general, the Court punted. It concluded that it did not have to revisit Genero (the case that originally concluded that 4112 imposes liability on individual managers and supervisors), because the employer in that case was in the private sector. Nevertheless, the Court concluded that its “reasoning in this case calls the Genaro majority’s reasoning into question, particularly its basis for distinguishing the prevailing interpretation of Title VII.”

For now, Genaro and its imposition of individual liability lives to fight another day. Private-sector managers and supervisors can still be sued for their own individual acts of discrimination. Moreover, Ohio employers are now split down public / private lines as to whether managers and supervisors can be held individually liable for discrimination.

Yet, Ohio employers have hope that when presented with the right case, this Court will overturn Genaro and rid Ohio of its anomalous individual liability. Or, Ohio’s legislature can do right by our state’s employers and pass legislation ending this incorrect interpretation of R.C. 4112, which will bring Ohio into line with the discrimination laws of nearly every other state and Title VII.

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:

Discrimination

• Gee Whiz! Sexual Harassment Claims Abound at Archie Comics – By Both Males and Females! — via Employment Discrimination Report
• 5th Circuit Weighs In On Religious Discrimination — via Michael Fox’s Jottings By An Employer’s Lawyer
• Understanding Gender-Identity Discrimination — via Molly DiBianca’s Delaware Employment Law Blog
• Is AGE the hidden area of discrimination? — via Mike Haberman’s Omega HR Solutions
• Why the majority and dissenting opinion in the Ninth Circuit case of Weaving v. City of Hillsboro both got it wrong — via Understanding the Americans with Disabilities Act (ADA)
• NYC: “‘Ban the Box’ bill worries businesses” — via Walter Olson’s Overlawyered
• Sexy ADA issue: Bad breakup may not justify employer-mandated medical exam — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Looking back on Zubulake, 10 years later — via Electronic Discovery Law
• How NOT to Produce Facebook Evidence — via Next Blog
• Dinging distracted drivers — via Technology for HR
• Delaware Adopts Model Law Allowing Social Media Accounts to be Inherited — via Ride The Lightning

HR & Employee Relations

• A Cold Shower for Workplace Ice Bucket Challenges? — via Dan Schwartz’s Connecticut Employment Law Blog
• My Boss Talks About Killing People — via Evil Skippy at Work
• Telecommuting not as prevalent as you might think — via Business Management Daily
• How Family Support For Dads Also Helps Working Moms, Kids and Employers — via Fathers, Work and Family
• Don’t Treat Work-Life Balance as a Zero-Sum Game — via Lifehacker
• Common Mistakes that Derail Enforcement of a Noncompete Agreement — via Michigan Employment Law Advisor

Wage & Hour

• Under the FLSA, a Day Late is a Dollar Short — via Wage & Hour Insights
• How Do Wage and Hour Laws Apply to Telecommuting? — via Overtime Lawyer Blog
• Showdown With Showtime: Never Ask Professionals to Work for Free — via Evil HR Lady, Suzanne Lucas
• The Growing Use of Statistical Analysis In FLSA Overtime/Misclassification Lawsuits — via Wage & Hour - Development & Highlights
• Can an Employer Persuade an Employee to Work Instead of Taking FMLA Leave Because Her Job is Really Important? — via Jeff Nowak’s FMLA Insights
• Here’s why you provide a list of essential job functions when approving FMLA — via Eric Meyer’s The Employer Handbook Blog
• 7th Circuit Rules Plaintiff Does Not Need Expert Testimony to Show Incapacitation in FMLA Claim — via Wisconsin Employment & Labor Law Blog
• 3d Cir. on FMLA Right to Return to Work — via Phil Miles’s Lawffice Space

Labor Relations

• Handbooks are Still Being Overly-Scrutinized by the NLRB — via Matt Austin Labor Law
• Harassment Investigations: New NLRB Decision Complicates Them Even More — via WinWinHR
• Cry “Solidarity” and Let Loose the NLRB: A Significant Expansion of the NLRA’s Protections — via Vorys on Labor

 

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

Employers 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.

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.

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.

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.

WIRTW #333 (the “firsts” edition)

Big 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:

Discrimination

• Peanut Allergies Can Be Disabilities But Analysis Must Run Deeper — via Dan Schwartz’s Connecticut Employment Law Blog
• Anti-discrimination law vs. associational freedom, again — via Overlawyered
• Post-Pregnancy Discrimination? — via Next Blog
• Facially Sex-Neutral Statements and Conduct May Support a Sexually Hostile Work Environment Claim — via New York Labor and Employment Law Report
• Sex Discrimination: Employers can be held liable for terminating an employee based on an angry co-worker’s intent on revenge — via Employment Law Bits
• Teacher Who Refused Fitness-For-Duty Exam Has No Disability Accommodation Claim — via The Employment Brief

Social Media & Workplace Technology

• Delaware is first state to adopt model law that says social media accounts can be inherited — via ABA Journal Daily News
• Social Media Policies in the Workplace — via The Labor Dish

HR & Employee Relations

• The hidden business benefits of fantasy football — via Evil HR Lady, Suzanne Lucas
• HR Cinema: Guardians of the Galaxy — via Casey Sipe’s The Employer’s Lawyer
• Teleworker, or teleslacker? Here’s how employers can tell the difference. — via Robin Shea’s Employment and Labor Insider
• Forget About Non-Competes – What are employers agreeing on? — via Smooth Transitions
• Why Going Green Is a Great Idea in the Workplace — via Mike Haberman’s Omega HR Solutions
• Five Things Every Lawyer Should Know About The Ebola Virus — via The Sociable Lawyer Blog
• My Employee Is Obsessed With Ebola — via Evil Skippy at Work

Wage & Hour

• Lesson from Wal-Mart: Wage and Hour Violations Don’t Pay! — via The Emplawyerologist
• Gawker Media in Crosshairs of Interns’ FLSA Suit — via Joe’s HR and Benefits Blog
• NFL Argues Cheerleader Pay Is Exempt From State Labor Laws — via Law.com
• 7-Eleven Franchise Operators’ Overtime & Minimum Wage Lawsuit Given Green Light by NJ District Court — via Management Memo
• When Is It Time For A Wage Hour Audit? Answer—Now! — via Wage & Hour - Development & Highlights
• Not Paying Employees On Time? It’s Considered an FLSA Violation — via TLNT

Labor Relations

• Board Circles Back To Ruling Nixed By Noel Canning — via Labor Relations Today
• You’re NOT Paranoid – the Agencies ARE Ganging Up — via Labor & Employment Law Perspectives
• NLRB may encourage your employees to file OSHA, FLSA claims too — via Eric Meyer’s The Employer Handbook Blog
• The latest from the NLRB on employment-at-will — via Business Management Daily

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.

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.