When the same actor hires and fires, discrimination is unlikely

It seems to be common sense that if the decision maker accused of a discriminatory adverse action is also the individual responsible for earlier hiring that same person, it is unlikely that a discriminatory reason motivated the latter decision. After all, if I discriminate against people of a certain race (or gender, age, religion, etc.), why would I hire them in the first place? Wouldn’t I just not hire them to keep them out of my organization?

Courts refer to this as the “same-actor inference” — inferring a lack of discrimination from the fact that the same individual both hired and fired the employee.

A recent decision from the Southern District of Ohio applied this inference in a case in which a fast-food manager claimed discrimination after the “same actor” hired him, and, shortly thereafter, fired him:

Even Plaintiff’s theory of this case does not suggest race discrimination: it defies logic that a Caucasian manager would hire him in an attempt to replace a minority manager and then “turn the tables” four months later and fire him for being Caucasian.

This is not to say that the same actor can never discriminate. After all, Chevy Chase hired Richard Pryor after lobbing the worst kind of racial bombs across the interview desk. Indeed, in the 6th Circuit, this “same actor” inference is insufficient, in and of itself, to entitle an employer to summary judgment. But, if you are faced with a case in which the same actor is accused of firing after hiring, absent other compelling evidence of discriminatory intent, you will have a great defense to the discrimination claim.

What does an ADA interactive process not look like?

Upon attempting to return from a medical leave of absence, an employee requests the following accommodations: an ergonomic chair, adjusted lighting in her office, and a part-time schedule for the next eight days. Instead of providing the accommodations, or even discussing their availability, the employer refuses to permit the employee to return to work, instead telling her not to return until it was with no restrictions or accommodations. The company later fires the employee (seven days after she filed an EEOC charge challenging the failure-to-accommodate), telling her that she failed to engage in the interactive process.

These are the facts of the latest ADA lawsuit filed by the EEOC. If the facts as the EEOC alleges are true, this case seems like a slam dunk for the agency.

Once an employer becomes aware of the need for a reasonable accommodation, the ADA obligates it to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. That process requires communication and good-faith exploration of possible accommodations. An employer cannot dismiss, without discussion, accommodations proposed or requested by the employee. The employee might not be entitled to a requested or preferred accommodation, but he or she is entitled to a good-faith exploration of their possibility.

In this case, it appears that the employer did the exact opposite of what the ADA requires of it, and, to make matters worse, blamed the employee for the breakdown of the interactive process when later firing her on the heals of her EEOC charge. 

This employer is going to learn an expensive lesson about the reasonable accommodation process. Perhaps you can learn something from its apparent mistakes. 

WIRTW #338 (the “can you find me now” edition)

According to a recent Harris Poll, men are nearly twice as likely to lose their smartphones than women (46% to 27%). Moreover, the younger you are, the more likely you are to lose your phone. For employees age 18-34, 60% of men report losing their smartphones, as compared to only 30% of women.

My own house is the exception, not the rule. Neither my wife nor I fall into the 18-34 demo (sorry, honey), and she is much more likely to be one saying, “Have you seen my phone,” as we’re trying to leave the house.

So, readers, what say you? Who loses their phones more, men or women?

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

Discrimination

• Congress Criticizes the EEOC’s Policy on Background Checks — via employeescreenIQ Blog
• The EEOC has been a busy bee this week. (It stings!) — via Robin Shea’s Employment & Labor Insider
• EEOC Is Targeting Pregnancy Discrimination: Three New Cases — via Employment Discrimination Report
• Does Telling Fat Jokes and Farting At Co-Workers Constitute Sexual Harassment? — via Minnesota Employer
• Just because infertility is a disability doesn’t mean the treatment for it is protected by the ADA — via Understanding the ADA
• Court rules interactive process should have been triggered by a couple of stray comments — via EmployerLINC
• Court Dismisses EEOC Lawsuit Challenging CVS Separation Agreement — via Dan Schwartz’s Connecticut Employment Law Blog
• It’s Okay to Ask An Employer About Their Religious Views — via Lifehacker
• Does Your Company Prohibit Transgender Discrimination? — via In House

Social Media & Workplace Technology

• Your future employees are texting fools. Are you prepared? — via Blogging4Jobs
• Only 30% Of Employees Trust Employers To Manage BYOD — via Workplace Diva
• 25 Acts of Social Media Cruelty — via Inc.com
• Debating the Mechanics of Handling Social Media — via You’re the Boss Blog
• 3 Technology and Social Media Policies To Consider E— via RC Insights Blog
• Is Your Social Media Presence a Blessing or Curse? — via Bulls Eye Recruiting
• Social media & HR: Know your state privacy law — via Business Management Daily

HR & Employee Relations

• Can We DO That?! Personal Lives in the Not-So-Private Eye — via Next Blog
• Is It in My Head? The Who, Hearing Loss, and Headphones in the Workplace — via Workforce
• 6 questions for companies changing a dress code — via Evil HR Lady, Suzanne Lucas
• Adrian Peterson Situation Spotlights Dilemma Employers Face Frequently — via Texas Employment Law Update
• My Co-Worker Shoplifts — via Evil Skippy at Work
• #Workflex Is More Than Telecommuting — via Families and Work Institute Blog

Wage & Hour

• Using Independent Contractors just got riskier! — via Mike Haberman’s Omega HR Solutions
• Court Rules Private Settlement Of FLSA Claims May Be Possible — via The Employment Brief
• Attorney Overtime Lawsuit Dismissed Under FLSA Professional Exemption — via Wage & Hour - Development & Highlights
• Fifth Circuit: Franchisor Not An "Employer" Under FLSA — via Employer Advocate

FMLA

• Employer Compliance with the Family and Medical Leave Act: Recent Study — via Workplace Prof Blog
• An orgasm on a treadmill explodes an employee’s FMLA claim — via Eric Meyer’s The Employer Handbook Blog
• Are You a Co-Employer? FMLA Joint Employer Liability Can Be Deadly — via Jeff Nowak’s FMLA Insights
• Regional Air Carriers are “Joint Employers” Under FMLA — via Employment Brief
• FMLA Lessons From Wal-Mart: Just What the Doctor (and Court) Ordered — via The Emplawyerologist

From the archives: Time off for religious holidays

Since today is both Rosh Hashanah and a work day, I though it appropriate to go deep into the archives, all the way to (yikes) 2008, to reprint a post discussing an employer’s obligations to an employee who asks for a day off to observe a religious holiday.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.

In other words, permitting Jewish employees a day off for Rosh Hashanah may impose an undue hardship, depending on the nature of the work performed, the employee’s duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.

In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the High Holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical reasons.

Legalities aside, however, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

EEOC should do as it does, not as it says

Last June, the EEOC sued BMW, claiming that the company’s policy of automatically disqualifying from employment anyone with certain felony convictions disparately impacted African-Americans. Unfortunately for the EEOC, like BMW, it also uses criminal background checks to screen applicants.

BMW has filed a motion to compel (copy here, h/t: Nick Fishman, at the EmployeeScreen IQ Blog), asking the court to require the EEOC to disclose in discovery its own policy for criminal background checks in hiring. BMW argues that the information is necessary to develop defenses to the Agency’s discrimination claim:

The extent to which the EEOC excludes individuals from employment based on their criminal background assists in determining the meaning of “business necessity” because the actual practices of the EEOC, as the agency charged with administering the statutory scheme, inform the meaning of the statutes and regulations it enforces. Likewise, the similarities between the EEOC’s and BMW’s policies bear on whether the EEOC may be estopped from complaining about BMW’s use of policies and procedures that the EEOC also uses.

This argument is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:

If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.

Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.

What’s good for the EEOC’s goose should be good for corporate America’s gander. The fact that the EEOC has fought so hard to keep this information away from the eyes of the companies it is suing suggests that there is fire to go along with the EEOC’s smoke. Bravo to these employers for attempting to keep the agency honest.

Is it legal to fire an employee for off-duty alcohol consumption?

We know it’s legal to fire an employee for drinking on the job, but what about an employee who drinks off the job? Can an employer legally terminate an employee who tests positive for off-the-job alcohol consumption?

29 states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities. In these states, the answer is easy—no, you cannot fire an employee for off-duty drinking, unless, of course, the employee is drunk or impaired at work, at which point all bets are off. 

Ohio, however, is not one of these states. Does this mean that in Ohio you can legally fire an employee who drinks away from work?

Recently, the EEOC took up this issue in an Informal Discussion Letter. The EEOC was asked, “Is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment?”

The employer in question, a nuclear power plant operator, imposed random, for cause, and follow-up alcohol testing of all employees, and fired any employee after a second confirmed positive alcohol test at work, regardless of where the employee consumed the alcohol. Further, the employer required employees who are alcoholics or are perceived to be alcoholics to permanently abstain from drinking, regardless of whether they have tested positive for or been under the influence of alcohol at work.

The EEOC concluded that the policy “imposed a qualification standard that would result in termination of any employee who is an alcoholic or who is perceived to be an alcoholic and who does not abstain permanently from drinking alcohol on and off the job.” Because the ADA protects alcoholism as a disability, the policy discriminates on the basis of that disability. Thus, the policy was illegal under the ADA.

Employers do not have to go as far as the employer in this case to protect safety and other legitimate interests. This employer (a nuclear power plant operator) has as great an interest as any employer in ensuring that its employees are not impaired on the job. 

Tailor you work rule to on-the-job performance. Test randomly and test for cause. If an employee tests positive, you know that employee was under the influence at work, a terminable offense. There is no need to regulate employees’ off-duty lives by requiring abstinence.

[Hat tip: Drug & Alcohol Testing Law Advisor, c/o Texas Employment Law Blog]

This is what a retaliatory waiver of EEOC rights looks like

In case you missed it last Friday, a federal judge dismissed the EEOC’s lawsuit against CVS, which had challenged as retaliatory various garden-variety provisions in the retailer’s employment separation agreement.

On that same day, the EEOC announced the filing of another lawsuit, which also challenged as retaliatory a provision in an employment document. Unlike the CVS lawsuit, however, this lawsuit likely has merit.

The EEOC alleges that a Florida restaurant franchisor operator requires, as a condition of employment, all applicants and employees to submit all employment-related claims to binding arbitration, and waive their rights to file discrimination charges with the EEOC. You can read the allegedly offending arbitration clause here.

Unlike the challenged clauses in the CVS case, this clause expressly prohibits individuals from pursuing discrimination charges with the EEOC (or its state or local counterparts). The employment discrimination laws, however, prohibit as retaliatory any effort by an employer to require employees to forsake their rights to see redress with the EEOC. Thus, in my opinion, as a management-side employment lawyer, this employer’s agreement has problems.

The proper way to draft an arbitration agreement, or other agreement that waives certain rights or remedies, is to carve out EEOC charges. You would say something like this:

Nothing in this Agreement is intended to, or shall, interfere with the employee’s rights under federal, state, or local civil rights or employment discrimination laws to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against the Employer, regardless of who filed or initiated any such complaint, charge, or proceeding.

Because this clause protects the EEOC’s right to investigate and remedy violations of, and otherwise enforce, the law, it should pass muster with the EEOC. (Of course, before you implement any such language in your agreements, you must consult with your own employment counsel).

My advice to the employer in this case is to settle with the EEOC as soon as possible on the best terms possible, and avoid the expense of a costly uphill legal battle that will be difficult to win.

BREAKING: Federal judge dismisses EEOC severance agreement lawsuit against CVS

The Chicago Tribune is reporting that U.S. District Judge John Darrah has granted CVS’s motion to dismiss a lawsuit filed by EEOC, which challenged the company’s severance agreements as overly broad and retaliatory. 

Recall that the lawsuit challenged several garden-variety terms in standard employee severance agreements, including non-disparagement, confidentiality, and a covenant not to sue (which expressly disclaimed EEOC charges).

When the EEOC filed this lawsuit earlier this year, I exclaimed that a ruling for the agency could be ruinous for employers. Kudos to this judge for recognizing the folly of the EEOC’s position.

The Tribune reports that the court granted CVS’s motion at a hearing, and said that a written opinion would follow. I’ll have full coverage of this significant rebuking of the EEOC’s extreme position as soon as the opinion publishes.

In the meantime, this is not the end of this issue. It is possible, it not probable, that the EEOC will appeal this dismissal to the 7th Circuit. Also, the EEOC has filed a similar case in at least one other court. There is always a chance that another judge will see this issue the EEOC’s way, creating a split, and a headache for employers.

[Hat tip: Ameet Sachdev]

WIRTW #337 (the “page limit” edition)

When you were in school, did you ever fudge the margins, or the font, or the line-spacing to fit your term paper within the confines of a teacher’s page limit. Let me give you lawyers reading today’s post a little practice pointer. Don’t do that when you file a brief with a court. Slate.com quotes the opinion of District Court Judge Carl Barbier, who took BP to task for playing with page limits.

BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck.

Ouch.

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

Discrimination

• Iowa Editor Fired Over “Gaystopo” Blog Post Claims He’s A Victim of Religious Discrimination — via Jim Romenesko
• Nepotism in the Workplace - is it discrimination? — via Employment Law Bits
• Ten “Reasonable Accommodations” For Employees With Disabilities — via Employment Discrimination Report
• What employers need to know about “subtle bias” before it becomes an in-your-face lawsuit — via Eric Meyer’s The Employer Handbook Blog
• What can a disabled comedian teach HR? — via Mike Haberman’s Omega HR Solutions
• You’re Damned if You Automatically Fire an Employee Who Has Cancer — via damnedif
• EEOC takes on fitness-for-duty medical releases; how to avoid the crosshairs — via Next Blog

HR & Employee Relations

• Fantasy Football’s Impact on the Workplace — via HR Defense Blog
• Some Extra Points about Fantasy Football and Your Workplace — via EntertainHR
• You Stink! How to Have Difficult Conversations with Employees — via Blogging4Jobs
• Analytics and … Employment Law? — via The Labor Dish
• Off-duty domestic violence — what’s an employer to do? — via Robin Shea’s Employment & Labor Insider
• The Good, the Bad, and the Ugly: What You Should Know About Ban the Box — via TLNT
• How Long Can You Enforce a Non-Compete Agreement For? — via Dan Schwartz’s Connecticut Employment Law Blog
• How To Protect an Employer’s Intellectual Property — via Minnesota Employer
• Fired for What!? - Judge Loses Job Over Social Media Posts — via Phil Miles’s Lawffice Space

Wage & Hour

• Wage-and-Hour Implications for Telecommuting — via Employment Essentials
• Shell Oil and Related Company Pay Over $4 Million in Overtime Back Wages Following DOL Investigation — via Texas Employment Law Blog
• Food Concession Employers Win Major (But Costly) FLSA Victory — via Employer Advocate
• Lawyers Hit Rough Patch in Unpaid Intern Class Actions— via Law.com
• Cheerleaders Win Wage Theft Lawsuit — via Overtime Lawyer Blog
• Working “Off the Clock” is Not OK — via DOL’s Work in Progress
• Can We Terminate an Employee for Working a Second Job While on FMLA Leave? — via Jeff Nowak’s FMLA Insights

Labor Relations

• NLRB goes rogue against small business — via The Hill
• NLRB reinstates free meals for striking BBQ workers — via Ross Runkel Report
• Your Next Airline Delay May Carry the Union Label — via LaborPains.org
• Protecting the Employer’s Brand During a Labor Dispute — via Vorys on Labor
• Chipotle’s Sweatshop! — via The Tim Sackett Project
• Decertification Fight At Cablevision Turns Nasty — via Labor Relations Today

The best defense to a discrimination claim is…

Wilson v. Chipotle Mexican Grille (6th Cir. 9/17/15) [pdf] is an unusual or distinct case, yet it teaches employers an important lesson about how to win a discrimination case.

Catherine Wilson, an African-American female, worked as a part-time crew member at a Cincinnati Chipotle. Her reviews listed her as a “low performer,” and her supervisors counseled her about her “attitude.” Wilson requested, and was denied, a 10-day leave of absence to go to Disney World. Because of her insistence for the time off, however, her manager took her off the schedule for those 10 days and considered her to have quit her job.

When she was fired after attempting to work after she “quit,” she sued the restaurant for race and sex discrimination.

The court had little trouble dispensing with the employer’s claim that Wilson had quit her job. Whether or not she requested time off, she returned to work the next day with the intent to work. Those actions do not demonstrate a voluntary resignation.

Regardless, the employer still won the case because Wilson could not show that she was replaced by someone outside the protected classes.

Wilson offered no evidence that Chipotle replaced her with white or male employees. To the contrary, Wilson’s part-time slot was picked up by three African-American females and one African-American male. The Clifton branch work force was 75% African American during the relevant period, and Wilson offers no evidence that this changed at the time.

So, what’s the best defense to a discrimination claim? Hire others in the same protected group. If your workplace is three-quarters black, it become very hard for a black employee to claim disparate treatment. If you replace that black, female employee with three other black females, and a black male, it’s case over.

An African-American, female employee cannot show discrimination when you replace her with another African-American female. All the more reason to maintain a diverse workforce. And, an important point to consider if you need to replace a fired employee that you think might turn around and sue.

Psych. Claims: Not the Dead Bang Loser You May Think

One of the benefits of my new firm is that it exposes me to new practice areas. Case-in-point, workers’ comp, which I could not previously offer. Today, I am introducing you to my partner, Steve Dlott, who heads the Workers’ Compensation Department at Meyers Roman, and is a Certified Specialist in Workers’ Compensation Law.

Steve was kind enough to author a guest post, discussing a tricky issue under Ohio’s workers’ comp laws, psych claims.

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Having worked with several different TPA’s regarding psych. claims, there seems to be a general doomsday mindset about the inevitability of such claims. As I have been accustomed to hearing, “What’s the point in fighting them? They always get allowed.” Certainly, based on the IC’s history when it came to such claims, this reaction was entirely understandable. However, based on my own recent experience of taking a string of psych. claims to hearing, these claims are winnable. In fact, I have won the last 5 psych. claims that went to hearing. And, to reinforce this point, several of those claims were state funded claims where the BWC psychologist supported the C-86. That is not to say, of course, that every psych. claim is winnable, or that this streak will indefinitely continue. Certainly, it will not. The point is simply to dispel the commonly held notion, upon getting a C-86 for depression or PTSD, that success is hopeless-or dismal at best.

Two factors account for this new outlook-one, clarification of existing law, the other, good old fashioned detective work. First, in Armstrong v. Jurgensen, the Ohio Supreme Court reiterated the legal requirement for establishing a psych. condition. As the court noted, the psych. condition must result from the physical injuries in the claim and not simply relate to the injured worker’s involvement in the accident. In Armstrong, the injured worker (Armstrong) was slightly injured in an accident in which the other driver was killed. After Armstrong’s claim was allowed for soft tissue injuries, he sought to additionally allow his claim for PTSD. The IC allowed the PTSD and the employer appealed the disallowance to court. The employer ended up taking the case to trial. The judge overturned the IC’s decision, finding the claim not compensable because it did not arise from the allowed conditions. The case was ultimately appealed to the Ohio Supreme Court, which affirmed the trial court’s decision. While employers have always argued this was the law, as apparent from the IC’s decision, hearing officers did not always buy this argument. Now, with the Supreme Court’s decision, they must. 

Without question, Armstrong has changed the landscape in terms of giving employers a significant advantage in getting psych. claims denied, provided it can be shown-which happened in 3 of the 5 cases I won-that the psych. condition did not arise from the physical injuries.

The second step in successfully fighting psych. claims is simply good old fashioned detective work. In one claim, I discovered claimant had a previous history of psychological treatment. Claimant had denied this to both her psychologist and to the BWC psychologist. While this certainly is not unusual, through discovering a record buried in other documents in the injured worker’s file which led to my discovering claimant’s previous history of depression, I was able to discredit claimant at the hearing. Not surprisingly, hearing officers do not like liars, and, not just in this case, but in all of the cases I’ve won to date, the claimant’s credibility has been a major focus of the hearing. Because credibility is such a key component in psych. claims-more so than in any other claim because the condition is based almost entirely on the claimant’s subjective symptoms (“I’m depressed”, “I can’t sleep”, “I can’t concentrate”, etc.), a thorough investigative background is absolutely critical (and often overlooked) in making the difference between success and failure at the IC.

So, my advice to tpas and others is: Bring it on. Don’t assume that fighting that psych. claim that was just filed is a hopeless cause. With Armstrong at our side and good detective work of the injured worker’s background aggressively pursued, who knows, it may be a winner after all.

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.

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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.