Category: Commentary & Opinion

Posted on

Dream on — lawsuit by Aerosmith drummer highlights the legal risk of ‘fitness for duty’ exams

Aerosmith drummer

Joey Kramer, Aerosmith’s founding and longtime drummer, is suing his band mates after they blocked him from joining them at upcoming high-profile events, including this weekend’s honor as the 2020 MusiCares Person of the Year and its Lifetime Achievement Award at this weekend’s Grammys.

Kramer claims that Steven Tyler, Joe Perry, Tom Hamilton and Brad Whitford are not allowing him back in the band following a temporary disability from minor injuries he suffered last year. According to TMZ, Kramer claims the band required the Aerosmith drummer to audition to prove he was “able to play at an appropriate level” before he could regain his drummer role. He further claims that this audition is unprecedented in the band’s 50-year history, during which each of other members had to step away for various reasons.

This story about the Aerosmith drummer got me thinking about an employer’s rights when an employee seeks to return to work after a medically related leave of absence. Two laws potentially apply — the Americans with Disabilities Act and the Family and Medical Leave Act.

According to the EEOC, under the ADA:

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.

The issue is more complicated if the FMLA covers the employee’s leave. According to the DOL’s FMLA regulations:

    • As a precondition of restoring an employee out on FMLA leave for his or her own serious health condition, an employer can require the employee to obtain and present certification from the employee’s health care provider that the employee is able to resume work.
    • The fitness-for-duty requirement must be made pursuant to a uniformly-applied policy or practice that requires it for all similarly-situated employees (i.e., same occupation, same serious health condition).
    • An employer may only require a fitness-for-duty certification if it advised the employee of the requirement in the required FMLA designation notice at the outset of the leave.
    • The requested fitness-for-duty certification is limited to the particular serious health condition that caused the need for the FMLA leave, must certify that the employee is able to return to work, and may also certify (if requested) that the employee is able to perform the essential functions of the job.
    • Unlike medical certifications at the outset of an FMLA leave, fitness-for-duty certifications are a one-shot deal. No second or third certifications are permitted.
    • Failure by an employee to submit a requested fitness-for-duty certification strips an employee of his or her job restoration rights (unless the employer failed to advise the employee of the requirement at the outset of the leave).
    • The employer can require the employee to bear the cost of the fitness-for-duty certification.

Here’s where it can get really tricky. A failure by an employee’s medical provider to certify the employee as fit to return to work could trigger an employer’s obligation to engage in the ADA’s interactive process with the employee for a reasonable accommodation. If the employee’s medical provider, instead of returning the employee to work without restrictions, either asks for additional, finite unpaid time off or restrictions upon the return to work, the employer should engage with the employee to determine what accommodations are possible under the ADA. The failure to do so could result in an ADA violation.

These issues are tricky and fraught with legal risk. You should be contacting your employment counsel to help you navigate these issues when they arise.

Posted on

Leadership Skills: Inclusion and Empathy

Jenny just walked into your office and confessed her life is falling apart due to an addiction to Vicodin.

Tom just showed up in a dress and used what appears to be the wrong bathroom.

Your reaction to these events says a lot about how ready you are to be a manager in the coming decade. Your company is not likely to be of much help.

I recently finished reading Mike Isaac’s “Super Pumped: The Battle for Uber.” It’s the story of how Uber rose from humble beginnings to become a Silicon Valley unicorn, then stumbled from the top as its bro-tastic culture caused it to be tone-deaf to the world around it via repeated PR fiascos.

The cultural challenges led to the ouster of founder and CEO Travis Kalanick, who was replaced by former Expedia leader Dara Khosrowshahi (still CEO at Uber).

To illustrate the cultural overhaul underway at Uber, let’s look at some old founder-driven values under Kalanick, then compare those to new values rolled out under Khosrowshahi:

Old Uber Values: Meritocracy, toe-stepping, always be hustlin’.

New Uber Values: We build globally/live locally, we celebrate differences, we do the right thing.

Company values must evolve over time. Uber was late to make the cultural change, which underscores an important reality in most workplaces. Almost every people manager faces change happening faster than organizational infrastructure or company values can accommodate.

Great managers adapt before they are forced to and usually before the company sponsors cultural change.

Change is everywhere in society and comes at us fast. You’re reading about the drug use facing corporate America in this issue of Workforce. Opioid addiction, legalization trends and more are upon us. Company policy regarding hot button issues naturally trails the change we see outside the workplace. The fact that cultural change happens faster than companies can pivot is why one of the most important manager competencies in today’s world is rapid inclusion and empathy.

Consider the following realities:

  1. You’re a leader.
  2. You’re full of personal thoughts, a specific background and some bias.
  3. When change comes and you’re asked to consider the rights of yet another special class of people or individuals, you may react as if it’s a burden or worse. You can say it’s all gone too far. Some will agree with you.
  4. But you’ll ultimately acknowledge the rights and needs of the segment of people in front of you, or you won’t be allowed to lead anymore.
  5. History shows this cycle of events to be true. Look at all societal change and trailing legislation from yesterday’s Title VII to today’s LBGTQ+ conversations and emerging laws. Once societal change reaches critical mass, mandates come to the workplace. It’s just a matter of time.

Most of us don’t work for a company like Uber in crisis and as a result, cultural expectations related to inclusion and empathy are less clear. That means you’re on your own as policy at your company trails societal change. What if you weren’t late the game? What if you as a leader made it a priority to make all feel welcome and equal in your company and on your team?

Great managers adapt before they are forced to and before the company sponsors cultural change.

If that was your approach, you’d find the people in question — the special class of people currently causing others discomfort — incredibly willing to work for you and, just as importantly, freed to do their best work. You’d be maximizing your ability to get great work from the employees you have.

Many of you are HR pros and leaders working for companies stuck in the middle. Your company is slow to pivot on societal change for many reasons.

Also in Work in Progress: How to Hire Your First HR Leader

But that glacial corporate reaction to change is an opportunity. While you likely can’t change corporate policy in an agile fashion, you can still lead and train others on the business opportunity that happens when you treat people the right way.

When you’re early on inclusion and show empathy, a funny thing happens. Performance and the ability for someone to do their best work goes up. Word spreads about your empathy and the candidate pool expands. Managers start to have their own gravity from a cultural perspective

Also in Work in Progress: Are Your Leaders Credible? Are You Sure?

None of us are perfect when it comes to the change required as society evolves. But the best managers and leaders are moving quicker through the cycle to acceptance, and they’re viewed as a manager of choice as a result.

Uber was not an inclusive or empathetic company until it was forced to change. You don’t have to wait on your company to dictate inclusion. Be early on acceptance.

Posted on

You Can’t Prove Age Discrimination if You’re Replaced By Someone Older

Crescent Metal Products in Ohio fired Donald Tschappatt for a variety of instances of poor work performance.

He made “negative comments” about co-workers. He stood around doing nothing and disappeared from his work area. He took extended bathroom breaks. And he made various assembly and packing errors.

After the company fired the 55-year-old Tschappatt, he sued for age discrimination.

The problem with Tschappatt’s claim? Crescent Metal Products replaced him with someone 6 years older. That’s not a great fact for an employee claiming age discrimination.

As the court explained:

Tschappatt fails … to show that he was replaced by someone younger. All of the competent and relevant evidence indicates that the company replaced him with Bob Hunter, who was 61.… Crescent put in plenty of evidence that Bob Hunter, age 61, replaced Tschappatt. Crescent reassigned Hunter to Tschappatt’s position, and Hunter has been “able to successfully reach the same production goals” and “perform all of the duties” of the position “without incident.”

The law protects older workers from discrimination favoring younger workers. An employee cannot establish this if replaced by someone older. Case closed.

Posted on

Frivolous Litigation Has a Price … Sometimes a Big Price

employment law, labor law, overtime records

In 2005, Monika Starke filed a charge of discrimination with the EEOC alleging that her employer, CRST Van Expedited, Inc., subjected her to sexual harassment.

The EEOC expanded that initial charge into a federal-court lawsuit over whether CRST engaged in sexual harassment against myriad of its female driver trainees.

What followed was 14 years of litigation, several trips to the court of appeals, one trip to the U.S. Supreme Court, and an attorney-fee award of over $3.3 million against the EEOC for frivolous, unreasonable, or groundless conduct in the filing and prosecution of the underlying claims.

The issue that lead to the large fee award was the EEOC’s heavy-handed prosecution of a pattern-or-practice harassment claim, even though it did not plead such a claim in its complaint.

Late last year, the 8th Circuit Court of Appeals affirmed the fee award (which had previously been reduced on appeal from an initial award of $4.5 million).

As the master of its own complaint, it was frivolous, unreasonable and/or groundless for the EEOC to fail to allege a pattern-or-practice violation and then proceed to premise the theory of its case on such a claim. Claims necessarily premised on the inclusion of this claim are likewise frivolous, unreasonable and/or groundless.

As attorneys, we are responsible for our conduct in litigation. When that conduct gets out of hand or crosses the line, there are often consequences. Sometimes, those consequences are harsh, even if warranted. In this case, the EEOC learned a tough lesson, hopefully one that will end one of the longest running discrimination cases in history.

Posted on

DOL Provides Employers Much Needed Clarity on Joint Employment

employment law, labor law, overtime records

Joint employment is a legal theory in which the operations of two employers are so intertwined that each is legally responsible for the misdeeds (and the liabilities that flow from those misdeeds) of the other. It’s also a legal theory with which federal agencies and courts have struggled over the past several years.

The struggle started at the NLRB’s broad expansion of the definition of “joint employment,” continued with OSHA, and ended with the Department of Labor, in early 2016, announcing a similar broadening of the definition for wage and hour claims.

More recently, however, more measured and business-friendly federal agencies have ratcheted back these expansions. In December 2017, the NLRB announced that it would require “actual … joint control over essential employment terms” for a finding of joint employment. A few months earlier, the DOL pulled its joint employment rules, leaving the issue in limbo in wage and hour claims.

Earlier this week the DOL announced a final rule to update the regulations interpreting the definition of joint employment under the FLSA.

In the final rule, the department provides a four-factor balancing test for determining FLSA joint employer status in situations where an employee performs work for one employer that simultaneously benefits another entity or individual. The balancing test examines whether the potential joint employer:

  • Hires or fires the employee;
  • Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
  • Determines the employee’s rate and method of payment; and
  • Maintains the employee’s employment records.
The DOL adds that this rule “will add certainty regarding what business practices may result in joint employer status,” promote “uniformity among court decisions by providing a clearer interpretation of joint employer status,” and “improve employers’ ability to remain in compliance with the FLSA.” I cannot agree more.
This rule (available here) becomes effective on March 16, 2020.
Posted on

The 2nd Nominee for the Worst Employer of 2020 Is… the Uncaring Chief

Jon Hyman The Practical Employer

Three posts into 2020 and we already have our second nominee for the year’s worst employer. And this one is just plain awful.

From Salt Lake City’s Fox 13 News:

A mother is filing a lawsuit against a Salt Lake City-based company after she claims they fired her once they learned her son had cancer.

Becky Claussen has worked for a Salt Lake City Company called The Summit Group for 13 years.

Working remotely in Virginia, Claussen said things changed after her 10-year-old son Cameron was diagnosed with Leukemia in April.…

Claussen took paid time off and when she went back to work, she said her job assignment changed and she received an email saying, “I think we both know you can’t perform the account manager position adequately under the new circumstances.”

In July, Claussen said her boss flew from Utah to Virginia to meet up.

“I went down to the hospital lobby and I met with him,” said Claussen. “That’s where he told me they were ending the business relationship.”

In that moment, Claussen said her boss fired her.

Returning to Cameron’s hospital room, Claussen explained what had happened—he then turned to her and said, “I’m sorry I got cancer cause it made you lose your job.”

If you fly across the country to fire an employee while she is in the hospital with her child battling Leukemia, you might be the worst employer of 2020.
*Silver lining: after five rounds of chemotherapy, the cancer is in remission.
**The company fully denies the allegations, stating, in part: “We are saddened about this situation. The allegation that we let someone go because of a family health situation is categorically untrue. We have been a small business operating in Utah for nearly 40 years and have countless examples of supporting both our employees and their families in the midst of various life trials. We also took reasonable steps to try to accommodate Becky, by granting all of her requests for time off and her request to be relieved of some of her job duties. We provided a flexible working schedule for her at her request. Becky confirmed to me via email that ‘you guys did what works for my family.’”
Other Nominees:
Posted on

A Notorious Workplace Warning About Employee Engagement

engaged at work, employee engagement

I’ve been hitting up a neighborhood eatery for several years now.

It’s adorned with funky artwork, airs an eclectic soundtrack and offers a menu featuring everything from a burger slathered in peanut butter to a tasty rotation of hand-made sausages. One week it might be venison, the next chorizo.

No matter the encased meat of the week, the Notorious D.O.G. is my go-to item.

I always feel comfortable stopping in. Not in a “Cheers” way where Norm and Cliff anchor one end of the bar and Frasier Crane holds down the other end and everybody knows my name, but instead for its casual neighborhood vibe.

As good as the food, drink and atmosphere are, what I’ve particularly appreciated is the staff camaraderie. It’s a talented young team that with few exceptions has worked together since my initial visit. I’ve often mused that it must be hard to crack this employee roster since the faces have been familiar for so long.

I even wondered whether there was profit sharing or an employee stock ownership plan to retain the team. In an industry where turnover is regularly 60 percent-plus, they were an employee-retention oddity.

Ultimately I concluded that this team just enjoys working together. So I wasn’t all that surprised to find out that they’re cool with sharing the wealth by pooling their tips.

What a novel concept that in our “Eff you, I got mine” working world, a group of 15 or 20 people pulling for one another’s success allowed them to share the work and reap the rewards.

It was not unusual to see one of them serving one night, hosting the next and behind the bar on another visit. As a collective they have each others’ backs.

If one server has a table that requires a lot of attention, another server or busser covers for their colleague by doing the little things — refilling water glasses or taking an appetizer order even though it is not their table. The team attitude provides amazing customer service, solves problems on the fly and perhaps most importantly keeps the locals eager to return.

About six months ago, though, I noticed a change at the restaurant. Some of the funky artwork disappeared.

The music went from eclectic to predictable. The weekly Notorious D.O.G. rotation went static. And most notably familiar faces were gone.

I discovered that my favorite little eatery had changed ownership.

I get it. Change happens. For those of us who take comfort in the familiar, we need to adapt. That, or find another restaurant that serves tasty, encased meat.

Over the next couple of visits it was clear that other changes were underway. New staff members were inexperienced, which is understandable, but they also seemed indifferent to the legacy of customer service that built up over the years.

Since the staff was still pooling tips, it presented the risk of a breakdown in trust between engaged longtime servers and indifferent new people manifesting itself in an atmosphere of apathy. The delicate dance of having each others’ backs, which had served employees so well, threatened to descend into a clumsy series of missteps that frustrated all staff members and irritated patrons accustomed to a high level of service.

Building a cohesive staff is a challenge all managers face. Engaging and retaining them truly tests that person’s ability to manage people but also speaks volumes for employees’ willingness to set aside their own interests for the good of the organization.

Even in the best of economic times a mere one-third of employees say they are engaged in their work.

That means you have a whole lot of your workforce who at best are indifferent about their work and a big portion of them who couldn’t give a rat’s tail about you, the company’s goals or mission statement.

What can you do? You can gamble on an exodus and hope to rebuild what likely has become a demoralized staff or worse, an ugly, toxic mess.

Or, realize and appreciate the current camaraderie and learn the nuances of what sustains it through employee engagement.

Sure you are going to make changes. It’s your shop now. But too many bosses make change just for change’s sake. Can I toss out a cliché? Why fix what isn’t broken?

Sadly, I still don’t feel that old level of comfort. I’m probably not the lone patron who noticed a swing in the employee engagement.

Swapping out wall hangings, reprogramming music and curbing the fare might be one thing. But a slippage in service is noticeable, and it’s also notoriously bad for business.

Posted on

The 1st Nominee for the Worst Employer of 2020 Is … the Repeat, Repeat Offender

Jon Hyman The Practical Employer

If there’s a better way of starting 2020 than with the first nominee for the year’s worst employer, I’m not sure what it is.

Meet Dru DiSilvestro, the manager at an electrical contractor in Elmer, NJ, accused of sexually harassing Kimberly North, a 23-year-old employee, while in the midst of litigation brought by another employee accusing DiSilvestro of flashing his penis and leaving a dildo on her desk. And that wasn’t even the first lawsuit accusing DiSilvestro of harassment. His employer settled another even earlier suit accusing him of sexually crude language.

According to the New York Post, “North says DiSilvestro for years made comments about her ‘hot body,’ grabbed his crotch while making lewd faces at her and asked her about her sexual preferences.” Further, when she broke up with her boyfriend, “DiSilvestro allegedly sent her a text … of a porno video and a GIF of a woman performing a sex act on a man.” Her lawsuit includes screenshots of the alleged text messages.

Worse yet, when North complained to DiSilvestro’s bosses they did nothing, even though they were already in the middle of defending the penis-and-dildo lawsuit. Eventually, North took a leave of absence because of the anxiety of working with DiSilvestro, and quit a month later. Her lawsuit soon followed.

If you ignore complaints of egregious sexual harassment brought by an employee while already litigating similarly awful claims of sexual harassment brought by another employee against the same supervisor, you might be the worst employer of 2020.

Posted on

’Twas the Employment Law Night Before Christmas

Jon Hyman The Practical Employer

In what will become an annual tradition for my last post of the year, I bring you the holiday classic, ’Twas the Employment Law Night before Christmas.

To all of my readers, thank you for a great 2019.
I’ll see everyone on Jan. 6, 2020, with fresh content to kick off the new year.

’Twas the night before Christmas, when all through the office
Not a creature was stirring, well, just one of the bosses;
The bonuses were paid by the company with care,
In hopes that no ungrateful employees would swear.

The workers were home all snug on their thrones;
While visions of deadlines danced on their iPhones;
And I at my desk, alone to deal with the crap,
For the one who’s in charge gets no holiday nap.

When out in the lot there arose such a clatter,
I sprang from my desk to see what was the matter;
Away to the door I flew in a hurried jolt,
Tore open the shutters and threw open the bolt.

The moon on the breast of the new-fallen snow,
Gave a lustre of midday to objects below,
When what to my wondering eyes did acquaint,
But a process server holding an eight-count complaint.

Count One alleged that we had discriminated,
On the basis of race by one irritated;
A denied promotion, gone to someone who’s white,
Said the lawsuit I read in the glow of the night.

Count Two, racial harassment, words she had o’erheard,
Does she know the ruckus she’s about to have stirred?
Oh, how she had pulled that nasty, evil trigger.
I’d never heard supervisors rhyme something with bigger.

Count Three, it’s not just racism she alleged,
Also sexism, to which management pledged.
The boys, she said, we paid so much more than the girls
Yet they do the same work as each work day unfurls.

Count Four, uh oh, #MeToo, sexual harassment;
Yes, it’s true, our managers often do torment.
But the touching and groping, alleged qui pro quo,
Never did anyone coerce being her beau.

Count Five, violation of the FMLA.
Retaliation for a leave; she said we must pay.
How many weeks after did we demote her? Three.
Is that enough temporal proximity?

Count Six, negligence from our data breach.
Lots of employee info, stole that cyber thief.
We should’ve invested in some tech best practices;
Cybersecurity relies on the law of averages.

Count Seven, wage and hour class action, oh crap!
Did we fall into an FLSA lawsuit trap?
Mis-classifications, non-exempt for exempt,
And off-the-clock work too, my butt cheeks were then clenched.

Ah, Count Eight, finally we can hope for success;
Intentional infliction / emotional distress.
With all of the awful conduct that she had claimed,
When’s the last time our workers we civility trained?

I spoke not a single word, went back my desk,
And yelled, with none to hear, “Do I ever get to rest?!”
I emailed our lawyer, thru my phone I exclaimed,
“How much trouble are we in? To me please explain!”

He sprang to his phone, gave to me this rejoinder.
“A lot; I’ll need a $20,000 retainer.”
But I also heard him proclaim, so as not to slight—
“Happy Christmas to all, and to all a good night!”

Posted on

NLRB Rolls Back 2 Key Obama Era Anti-management Decisions

Jon Hyman The Practical Employer

This week, the National Labor Relations Board decided two cases that rolled back key Obama era anti-management NLRB decisions.

Apogee Retail is a much bigger deal than Caesars Entertainment. Purple Communications required employers to allow employees to use their email systems for union-related communications if they otherwise allowed employees to use the email systems for any other purpose. Because it’s still the employer’s system, however, the employer still has access to the communications. I question why any employee would want to use an employer’s email system to talk union business, as they should assume the employer is reading all of their union-related emails.

Apogee Retail, however, reverses the biggest tragedy of the Obama-era NLRB. As I wrote all the way back in 2012 criticizing Banner Estrella Medical Center:

Workplace interviews are high-stakes affairs that carry serious liability repercussions for the employer. Moreover, it is often difficult to determine who is telling the truth and who is lying. This difficulty is exacerbated by the fact that those conducting these investigations are not trained detectives, but often HR personnel. …

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

The Board concluded that determined that a confidentiality rule limited to the duration of an internal investigation is generally lawful.

Bravo NLRB (for now). Still, it’s best to save your policies that complied with Purple Communications and Banner Estrella Medical Center. All bets are off if a Democrat takes back the White House in 2020, and you just might need to dig them out.