Jon Hyman – Page 9

March 5, 2014June 20, 2018

Following Doctor’s Orders Helps Employer Win ADA Case

Cynthia Horn worked for Knight Facilities Management as a janitor. Sometime in 2010, she developed a sensitivity to cleaning chemicals. Her doctor initially limited her to a maximum of two hours of chemical exposure per eight hour work day. When that limitation failed to abate Horn’s symptoms, her doctor modified the restrictions to “no exposure to cleaning solutions.”

As a result, Knight Facilities fired Horn. It concluded that there was no work available to accommodate her restrictions, because the chemicals were airborne and merely working in the building resulted in exposure. Management spoke to Horn’s union rep, on Horn’s behalf, to try to find a solution before firing her, but none could be found. Notably, Knight Facilities refused to allow Horn to use a respirator, concluding that its use did not meet Horn’s restriction and, even if it did, it would cause an undue hardship because Knight Facilities would have to buy respirators for all of the other janitors.

In Horn v. Knight Facilities Management-GM, Inc. (2/25/14), the 6th Circuit affirmed the district court’s dismissal of Horn’s disability discrimination claim. In determining whether the employer could reasonable accommodate Horn’s disability, the court started, and ended, with the limitation imposed by Horn’s doctor—“no exposure to cleaning solutions.” Horn claimed that the company either should have: (1) eliminated restrooms on her cleaning route, or (2) provided her a respirator. The court disagreed:

We find that neither proposed accommodation is objectively reasonable because they both fail to comply with the physician-mandated restriction of “no exposure to cleaning solutions.” Eliminating the bathrooms on Horn’s route or assigning her to a new route without bathrooms are not reasonable accommodations because it is undisputed that Horn’s job still would have involved exposure to cleaning chemicals. Likewise, there is no evidence that working with a respirator would have complied….

Her restriction was “No exposure to Cleaning Solutions” and that would include using or touching cleaning solutions. And while Horn asserts that a respirator could have eliminated or significantly reduced her respiratory exposure, she provides no actual evidence to support this statement, much less evidence showing that a respirator would have prevented all exposure. Horn’s personal belief that she could handle cleaning solutions as long as she was wearing a respirator is irrelevant.

While the Americans with Disabilities Act requires that you engage a disabled employee in the interactive process, as Horn illustrates, the employee’s specific medical limitations can dictate the boundaries of that interactive process and the scope of the accommodations you have to consider offering. If you legitimately cannot make an accommodation that meets the employee’s limitations, then the employee is not “qualified” under the ADA, and therefore unprotected by that law.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com. For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

March 4, 2014June 20, 2018

When are Preliminary and Postliminary Compensable? Supremes to let us Know (Maybe).

Yesterday, the Supreme Court agreed to hear Busk v. Integrity Staffing Solutions, to answer the following question (via SCOTUSblog):

"Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act."

“What does this mean,” you ask? In Busk, the plaintiffs claimed their employer illegally failed to compensate them for the time they spent passing through a required security check at the end of each shift. According to the plaintiffs, employees waited up to 25 minutes to be searched; removed their wallets, keys, and belts; and passed through metal detectors. They claimed that the checks were “necessary to the employer’s task of minimizing ‘shrinkage’ or loss of product from warehouse theft.”

The FLSA, as amended by the Portal-to-Portal Act, generally, precludes compensation for activities that are preliminary or postliminary to the employees’ principal activities. Preliminary and postliminary activities—those that are “integral and indispensable” to an employee’s principal activities—are compensable. To be “integral and indispensable,” an activity both must be (1) necessary to the principal work performed and (2) done for the benefit of the employer.

In Busk, the court concluded that the plaintiffs had sufficiently alleged that the security clearances were necessary to their primary work as warehouse employees and done for their employer’s benefit. Therefore, the district court erred in dismissing the wage-and-hour claim.

This case is the second in as many years that the Supreme Court will hear on this issue. Earlier this year, in Sandifer v. U.S. Steel, the Court concluded that the time employees spent donning (putting on) and doffing (taking off) their protective gear was not compensable under their collective bargaining agreement.

There are lots of other examples of preliminary of postliminary activities that could be occurring in your workplaces besides putting on and taking off protective gear, or security screenings. For example, your employees might spend time logging on to their computers before their work days officially begin. Or they might spend time at the end of their shifts transitioning to the next shift. I am hopeful that Busk will provide employers needed guidance on the compensability of these activities.

February 25, 2014June 20, 2018

Mind Your Internal Emails to Avoid Discrimination Issues

Shazor v. Professional Transit Mgmt., Inc. (6th Cir. 2/19/14), interests me for two reasons. First, it discusses and applies a “sex-plus” theory of discrimination to save a plaintiff’s race discrimination and sex discrimination claims from the summary-judgment scrap heap. “Sex-plus” recognizes that race and sex are not mutually exclusive, and protects African-American woman as a class of their own. I recommend Shazor to your reading list for its interesting narrative on this issue.

I want to discuss, however, the other interesting aspect of Shazor — the evidence the plaintiff used to avoid summary judgment. She submitted various emails between two corporate executives, in which they unflatteringly referred to her as a “prima donna,” “disloyal, disrespectful,” and a “hellava bitch.” Shazor successfully argued that these emails were code for “angry black woman” or “uppity black woman.” The court used these emails as prima-facie evidence of discrimination in support of her “sex-plus” claim.

Email is a powerful communication tool. It’s also very permanent. I’ve been saying this about social media for years, but perhaps it’s time to remind employers that communication is communication, no matter how it’s transmitted. If you don’t want something to appear on the front page of the newspaper, or to be read in front of a judge or jury, don’t put it in writing. Don’t email it, don’t text it, don’t Facebook it, and don’t tweet it.

“I have a solution,” you say. “What about apps like Confide, which erases a text message as soon as the recipient reads it.”

While these apps seem like a perfect way to communicate under the radar, their use for business purposes gives me great pause. The intent of this class of apps is to delete communications. I could very easily see a court, confronted with evidence that people have this app on their iPhones and use it for business communications have willfully destroyed evidence. Spoliation and evidence destruction discovery sanctions would result. For this reason, I believe that company mobile-device policies should police the use of apps like Confide, Snapchat, and their message erasing ilk. And, while your reviewing your policies, mix in some training for your employees about the responsible use of electronic communications.

February 19, 2014June 20, 2018

NLRB: No Such Thing as an Online Picket Line

When is a picket line not a picket line? Apparently when the protests take place online, at least according to the National Labor Relations Board’s opinion in Amalgamated Transit Union, Local Union No. 1433 (NLRB 2/12/14) [pdf].

In the case, certain employees took to their union’s Facebook page to post threatening comments to co-workers who refused to participate in the union’s strike against their employer.

Prior to the strike starting, one of the posts threatened, “THINKING of crossing the line. THINK AGAIN!” Sixteen people commented on that post, included one that wrote, “If u cross … you will lose your eyesight … from the 2 black eyes.”
On the second day of the strike, another employee posted on the union’s Facebook page: “We found them!! We found out where they are housing the scabs. We will be setting up lines at the hotel tomorrow.” Thirteen people comments on that post, including one that asked, “Can we bring the Molotov Cocktails this time?”

The employees argued that the union violated the National Labor Relations Act by not deleting or otherwise disavowing the statements posted on its Facebook page. The NLRB, however, disagreed:

Respondent’s Facebook page is in no way “an electronic extension” of its picket line…. A picket line serves a purpose quite distinct from that of the Facebook page. A picket line proclaims to the public, in a highly visible way, that the striking union has a dispute with the employer, and thus seeks to enlist the public in its effort to place economic pressure on the employer….

In contrast, Respondent’s Facebook page does not serve to communicate a message to the public. To the contrary, it is private….

Unlike a website in cyberspace, an actual picket line confronts employees reporting for work with a stark and unavoidable choice: To cross or not to cross. Should someone acting as a union’s agent make a threat while on the picket line, the coercive effect is immediate and unattenuated because it falls on the ears of an employee who, at that very moment, must make a decision concerning the exercise of his Section 7 rights….

This decision displays a fundamental misunderstanding about social media. Nothing about social media is private. It is public, interactive, and immediate. Even if the page on which the employees were posting was a “private” page or group, nothing stops employees from sharing the content via prints or screen caps. I am concerned that the agency that has taken such an active public stance regulating social media in the workplace appears to have such a fundamental misunderstanding about how this media operates.

February 18, 2014August 31, 2023

Can You Have a One-Person Reduction-in-Force?

Yesterday’s New York Daily News ran the following headline: “Long Island man, 76, sues company for age discrimination after ‘workforce reduction’ of one man.” The article suggests that there is something nefarious or underhanded about a layoff of one.

In reality, provided the layoff is bona fide, the number of people included is irrelevant. What is a bona fide layoff? According to one Ohio court:

In determining whether a valid work force reduction occurred, the key inquiry is whether or not the employer replaced the plaintiff. If an employer did not replace the plaintiff, but rather consolidated jobs in order to eliminate excess worker capacity, then a work force reduction took place.

In other words, it’s not a question of quantity, but one of quality. It does not make a difference if the layoff includes one employee or 100 employees, provided that those eliminated are not replaced.

This distinction is not one without a difference. Whether a job loss qualifies as a reduction-in-force matters. Workforce reductions require plaintiffs to come forward with additional evidence (direct, circumstantial, or statistical) to support an inference of age discrimination. Otherwise, the employer’s legitimate non-discriminatory reason (the economic necessity for the layoffs) will carry the day.

So, New York Daily News, I take issue with your headline. Yes, it is perfectly legal to have a one-person layoff, provided it is bona fide, and not a subterfuge to hire younger.

February 13, 2014June 20, 2018

A Proposed Solution for the EEOC’s Position on Retaliation in Severance Agreements

Yesterday I reported on a lawsuit the Equal Employment Opportunity Commission has filed, claiming that some fairly generic terms in an employee severance agreement constitute illegal retaliation. In EEOC v. CVS, the agency claims an agreement that attempts to limit an employee’s communication with the EEOC unlawfully attempts to buy employee silence about potential violations of the law.

I try to shy away from hyperbole, but OH MY GOD, THIS CASE COULD BE RUINOUS!!!

When you compare the inoffensiveness of the provisions challenged in CVS to the hard-line position put forth by the EEOC, you begin to understand why this case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.

Employers settle lawsuits and pay employees severance in exchange for certainty. Employers don’t write checks to litigants (or potential litigants) out of the goodness of their hearts. They do so because they want to get rid of claims and potential claims. The provisions with which the EEOC has taken issue — a general release, a covenant not to sue, cooperation, confidentiality, non-disparagement, and the payment of attorneys’ fees upon a breach — are crucial for employers. You’d be hard pressed to find an agreement that does not contain some combination of most, if not all, of these provisions.

Yes, the anti-retaliation provisions of the employment discrimination laws prohibit employers from requiring that employees give up their statutory rights to file discrimination charges, cooperate in investigations, or provide information to the EEOC. But, the CVS agreement that the EEOC is challenging did not contain those requirements.

Instead, the challenged agreement expressly protected the employees’ statutory rights:

Moreover, nothing is intended to or shall interfere with Employee’s right to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, nor shall this Agreement prohibit Employee from cooperating with any such agency in its investigation. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any Released Claim brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

In re-reading the EEOC’s complaint, the agency seems to take issue with two key facets of the challenged agreement:

The carve-out existed as a “single, qualifying sentence” in the “Covenant Not to Sue” section of the Agreement.
The carve-out did not expressly touch all of the challenged provisions in the Agreement.

Don’t shred your settlement and severance agreements just yet. As a I promised yesterday, I have a potential solution. Modify your agreements to bolster and clarify the protected-activity carve-out. In a provision separate and distinct from the release, waiver, or covenant not to sue, consider something like the following (modeled on the provisions in CVS):

Nothing in this Agreement is intended to, or shall, interfere with Employee’s rights under federal, state, or local civil rights or employment discrimination laws (including, but not limited to, Title VII, the ADA, the ADEA, GINA, USERRA, or their state or local counterparts) 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 the non-disparagement, confidentiality, or cooperation clauses of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss cheese of risk.

I cannot understate the potential significance of the EEOC’s position in CVS. This case bear monitoring, and I will continue to update you as the case proceeds. In the meantime, consider adopting changes to your stock separation and settlement agreements; the EEOC is definitely watching.

February 9, 2014June 20, 2018

Infertility’s Fertile Legal Ground

Fertility is a touchy subject. And unless you have experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it is difficult to understand the stress it causes.

Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization, or IVF, are time-consuming and time-sensitive.
What happens when a woman undergoing IVF treatments needs time off for those treatments? If her company fires her because of her infertility, could she present a sex-discrimination claim? Is infertility a disability protected by the Americans with Disabilities Act? Several judicial decisions and U.S. Equal Employment Opportunity Commission actions provide some insight.

In Hall v. Nalco Co., the 7th Circuit Court of Appeals permitted a woman fired during her IVF treatments to proceed with her Title VII sex-discrimination claim. It did not help the employer’s cause that plaintiff Cheryl Hall’s manager told her that the termination “was in [her] best interest due to [her] health condition,” and that the company’s employee relations manager’s notes reflect that Hall had “missed a lot of work due to health,” and cited “absenteeism — infertility treatments” as the reason for her termination.

In permitting Hall’s pregnancy discrimination claim to go to a jury, the 7th Circuit relied on the fact that employees “terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women.”

This issue is very much on the EEOC’s radar, which means it should be on employers’ radars, too.

Thus, an adverse action based on one’s need for time off from work to undergo fertility treatments is equal to sex discrimination. Stated another way, an employer that fires a female employee for missing work for IVF treatments discriminates not on infertility alone, but on the basis of medical conditions related to pregnancy.

Pregnancy is not the only type of unlawful discrimination fertility treatments implicate. Recently, the EEOC announced the settlement of a disability discrimination claim brought against an employer that fired a female employee after she disclosed that she was undergoing fertility treatments. In announcing the settlement, Timothy Riera, director of the EEOC’s Honolulu office, noted, “Federal law protects workers who are discriminated against due to their infertility, a covered disability. Workers who undergo fertility treatments should be treated like any other employee with a disability — with equal and careful consideration of reasonable accommodation requests.”

The EEOC’s approach to infertility as an ADA-covered disability is not novel. More than a dozen years ago, in LaPorta v. Wal-Mart Stores Inc., a Michigan federal court concluded that because infertility substantially limits the major life activity of reproduction, it was an ADA-covered disability. With the expansion of the definition of disability under the ADAAA, the act’s coverage of infertility should not be in dispute. (In that case, Wal-Mart was accused of denying a single day off as a reasonable accommodation for the employee’s fertility treatment).

There are three takeaways from this issue:

1. It is highly risky to terminate an employee who is seeking time off from work to undergo fertility treatments, whether you call it pregnancy/sex discrimination, or disability discrimination. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a nonpregnancy-related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures. Otherwise, an employer risks violating Title VII and the ADA.

2. Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.

3. Infertility and its treatments are stressful on parents-to-be. Fertility treatments, particularly in vitro fertilization, are time-consuming and time-sensitive. Do not exacerbate an employee’s stress by toying with her time away from work. Employers that deny time off for fertility treatments may find themselves in a discrimination lawsuit.
While this issue is seldom litigated, employers that fail to accommodate employees’ infertility treatments or otherwise discriminate against employees undergoing fertility treatments could see an explosion of these types of claims. As the EEOC reminds us, “One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations, among other possible issues.”

In other words, this issue is very much on the EEOC’s radar, which means it should be on employers’ radars, too.

February 3, 2014June 20, 2018

Is Regular Attendance an Essential Job Function? It Depends.

I’ve written before about the need for employers to handle with care an employee’s request for unpaid time off as a reasonable accommodation under the Americans with Disabilities Act. And, I’ve also written about the hard line the Equal Employment Opportunity Commission has taken against hard-capped leave of absence policies.

All is not lost, however, for an employer who needs to deny a leave of absence to a sick or injured employee, provided that the circumstances are right and the request is handled correctly.

To be eligible for protection under the ADA, an employee must be a “qualified” individual with a disability. “Qualified” means that the employee must be able to perform the essential functions of the job with, or without out, a reasonable accommodation. If regular attendance is a bona fide essential function of the job, then an employee who needs a leaves of absence as his or her only accommodation will not be “qualified,” entitling an employer to deny the accommodation request.

“Isn’t regular attendance essential to every job,” you ask? Unfortunately, in the context of the ADA, the answer is “no.”

Attendance may be an essential function of a job, provided that the circumstances warrant such a finding.

Is an organization sufficiently staffed such that an employee’s job functions can be performed in his or her absence?
Will the employer sustain added overtime costs as a result of an employee’s absence?
Will the employer have to hire substitute employee(s) to cover for the absent employee?
Does a written job description list attendance as an essential function?
Does the employer have formal policies providing for leaves of absence, or otherwise have a history of granting leaves to employees?

In other words, does the proposed accommodation impose an unreasonable and undue hardship on the employer? If the answer is yes, then attendance is an essential function, and a leave of absence cannot be a reasonable accommodation.

The Southern District of Indiana recently examined this issue in EEOC v. AT&T Corp. In that case, AT&T denied a leave of absence to an employee, Lupe Cardona, needing time off for Hepatitis-C treatments. AT&T argued that regular attendance was an essential function of the employee’s job as a customer service specialist. The court disagreed, and concluded that a jury should make the ultimate determination:

The only evidence AT&T submitted in support of its argument that attendance was an essential function of the job was the disciplinary notices it provided to Cardona for her absences.
The job description for Cardona’s position failed to list attendance as an essential function.
AT&T maintains 22 different leave-of-absence plans, which belies its claim that attendance is an essential function.

As the court pointed out in AT&T, “regular attendance is important in any job.” Important, however, does not always equate to essential. The bona fides must support the claim. Given the hard line the EEOC has drawn against the rote denial of leaves of absence as an ADA accommodation, employers should make a careful determination before denying a leave of absence as a reasonable accommodation. You might be able to support the decision based on attendance as a reasonable accommodation, but, as the AT&T case illustrates, you must have the facts to support your decision.

January 29, 2014March 10, 2022

A Lesson on Union Avoidance

Last week, the Department of Labor’s Bureau of Labor Statistics published its annual report of union membership. Private-sector union membership remains steady, at approximately 6.7 percent, which, as Cleveland.com points out, is a marginal increase from the prior year. Nevertheless, and perhaps emboldened by a favorable ear at the National Labor Relations Board, labor unions have become more active in trying to organize workers. Even the players on Northwestern University’s football team are trying to organize.

Do you know what to do if a labor union comes knocking at your door? Do you know what you can say to your employees if you hear the whispers of unionization floating through your workplace?

More importantly, do you know what you cannot say to your employees about labor unions and their organizing efforts? Take, for example, Phillips 66 (1/15/14) [pdf], in which the NLRB recently concluded that the employer unlawfully interrogated an employee when a supervisor asked him, “What’s your opinion of this union thing?”

Interrogation is one of the four cardinal sins of employer opposition of labor unions. The other three? Threats, promises, and spying. The four are easy to remember. They spell the well-used acronym TIPS (Threats, Interrogation, Promises, Spying).

PolicyMic recently published an internal Wal-Mart slide deck, which discusses the TIPS strategy in detail. Wal-Mart uses these slides to train its managers and supervisors on the right way, and the wrong way, to respond to union organizing.

PolicyMic took Wal-Mart to task for “encouraging managers into repeating anti-union talking points.” To the contrary, I applaud Wal-Mart for being proactive in ensuring that its managers know what they can, and cannot, say about unions, and for implementing a tactical, measured, and lawful response to union organizing.

Your managers and supervisors are your front-line defense against unions. They will hear the scuttlebutt among the employees. They will know whether your employees are happy and content, or dissatisfied and eager for change. They will be the ones to whom your employees communicate via your Open Door Policy (you have an Open Door Policy, right?) when they have a gripe or concern? And, they will be your mouthpiece to communicate to your employees your lawful corporate stance on labor unions, and the impact a union will have on your workplace.

The Wal-Mart slide deck is a great starting point for you to formulate and communicate your corporate philosophy and message on labor unions. Your friendly neighborhood labor and employment lawyer (nudge, nudge) is another. The point, however, is to have your strategy in place before a union comes knocking. Once the union starts talking to employees, your anti-union torpedo better be in the tube and ready to fire. Otherwise, you might just find yourself at the bargaining table discussing that first collective bargaining agreement.

For more on my ideas on strategic union avoidance, head over to a post I wrote all the way back in 2009, Adopt the TEAM approach to fight unions, or check out Chapter 8 in my book on workplace laws, The Employer Bill of Rights, which covers this topic in much greater detail.

January 24, 2014August 1, 2018

The Workplace Ethics of Class-Segregated Bathrooms: The Results

Two weeks ago I posed this question: Is it acceptable for a company to prohibit warehouse workers from using office bathrooms?

The results? By a margin of two to one, my readers expressed that it is not acceptable for a business to segregate its restrooms by class of workers.

This issue is not one of management rights versus worker rights. Or one of employer versus employee. Instead, this issue is about setting the correct tone for your workplace to send the right message to your employees. Do you want to be a workplace of harmony and teamwork, or secularism and division? Do you want everyone to work towards a common goal, or fight amongst themselves based on their perceived station?

Yes, there are certain situations in which separate restrooms will be necessary (safety and cleanliness come to mind). But, telling certain employees, for no good reason, that certain bathrooms are off limits plants seeds of disharmony and segregation that will not help your business achieve its best. Openness and inclusion breed teamwork and dedication. You want your employees to perceive management as part of the team, not as feudal overlords. Your policies should reflect this goal.

As for me, I’m off to use my golden key to use our executive washroom. Enjoy your day.