Category: Commentary & Opinion

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Thanks for the Financial Advice, But …

Andie Burjek, Working Well blog

There was a lot of upheaval on Twitter earlier this week for JPMorgan, which tweeted something many people found frustrating.

The bank has since deleted the tweet, but here’s the text that went along with it:

You: why is my balance so low
Bank account: make coffee at home
Bank account: eat food that’s already in the fridge
Bank account: you don’t need a cab, it’s only three blocks
You: I guess we’ll never know
Bank account: seriously?
#MondayMotivation

“JPMorgan’s tweet demonstrated a stunning tone-deafness about the economic realities facing ordinary Americans — including the big bank’s own minimum wage employees,” according to the LA Times. The article went on to quote a personal finance expert who says the genre of personal finance has long been discredited.

I’m reminded of an op-ed I read on Vice last year. The frustrated author wrote: “Sometime last year, I started frequently googling ‘why am I poor’ and ‘how do I stop being poor.’ Every result insisted the problem is I go out too much (I don’t go out, I’m too tired), I don’t have a savings account (I don’t have enough kick around cash to open a savings account), or I’m not planning my money right (I plan to pay my rent and then cry in a corner until my next paycheck, does that count?) … Financial advice is geared toward the financially stable who make bad financial choices, like investing in bitcoin this year or getting bangs after a breakup.”

I believe there is a lesson here for companies that already have or are considering financial wellness programs. Mostly, if you’re not paying your employees enough (like many minimum-wage employees or some entry-level employees), financial advice could come across as pretty much nonsense. See the Vice article above.

I would agree with that. I’m reminded of a great Twitter thread I saw a few weeks ago.

Responses included, “Ah that’s great because my landlord just started accepting snacks for rent payments.” Also, “What’s amazing is employers pitch these things as benefits, and not like, I dunno, good health coverage or a retirement plan.” Also, “my starting salary at entry level was $36k… 15 YEARS AGO.”

And, my favorite:

It’s a good reminder that things organizations call “perks” won’t appeal to people who aren’t making enough money. Trying to push “financial advice” as a perk to someone who’s living paycheck-to-paycheck or someone who’s seeing everyday expenses continuously rise while their salary stays pretty much the same, for example, will realistically solicit a much more bitter reaction than you’d hope for.

I’m not saying financial wellness programs and free financial advice have zero value, but they’re a tiny piece in the puzzle. They address a symptom (money problems), not the cause. People have bills, debt, student loans and medical bills to pay, and salaries have not been rising at the same rate as everything else. People’s money problems exist in this broader environment where everything (including education) costs more, and fair compensation is more useful for employees than free advice.

As someone relatively early in her career (who hopefully will be making much more money as I grow older), I do want to acknowledge that money advice can be helpful. My parents and other family members have given me helpful, necessary guidance over the years, and I’m very thankful for that. However, even I understand that personal spending habits are just one aspect of how you’re doing financially.

There are also these macro factors that cannot be ignored.

Also in Working Well: Expanding Employee Access to Mental Health Care

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A Cautionary Tale on Why We Background Check Employees

Jon Hyman The Practical Employer

Here is a cautionary tale on why employers should conduct thorough background checks on employers.

In late 2013, Kristl Thompson, Ashley Raby and Corbie Leslie filed a lawsuit against the Scott Fetzer Co. (doing business as “The Kirby Company”), Crantz Development, and John Fields. The women claimed Fields had sexually assaulted them (including verbal abuse and harassment, inappropriate touching, forced sexual acts, and rape) on numerous occasions between May 2012 and January 2013. A number of these allegations resulted in felony and misdemeanor convictions against Fields.

Fields had worked on and off since the 1970s for Crantz (a factory distributor of Fetzer-manufacured Kirby vacuums) as an independent dealer of Kirby vacuums. Over his decades of work, he had been charged with numerous criminal offenses, including embezzlement, unlawful imprisonment, domestic abuse, and rape.

In their civil lawsuit, the women claimed that Fetzer and Crantz were negligent in hiring Fields and allowing him to go on sales trips with them. The women also asserted claims against Fetzer alone for negligently failing to take appropriate precautions to prevent its independent contractors from hiring employees like Fields, and for negligent supervision of its independent distributor in its hiring practices.

The women alleged that after receiving Fields’s application to become a Distributor Trainee, Kirby conducted a limited background check on Fields, which showed that Fields had lied about his prior criminal record. They further alleged that had Kirby conducted a national search instead of a regional search, it would have discovered his criminal record was much more substantial than he disclosed (including rape). Nevertheless, with knowledge that “Fields had spent almost a year in jail for beating up his wife in 2000, and despite the fact that Kirby knew that Fields lied about his criminal record, Kirby approved Fields to be a Distributor Trainee.”

A year later, Fields applied to become a Factory Distributor. According to the women, Fields “again lied about his criminal record and Kirby again learned of his criminal record.” Despite again learning about Fields’s criminal past, “Kirby approved Fields’ application to become a Factory Distributor.” In the following years, Fields continued to commit crimes, including “forcible rape, first degree domestic violence, unlawful imprisonment, and assault.” While Fields was awaiting trial in the forcible rape case, Kirby learned that he had defrauded elderly customers. That crime appears to have been the tipping point for Kirby, and it terminated his factory distributorship.

Yet, after Fields’ release from prison in February 2012, Kirby rehired him, and he began selling their vacuums again. It was during this period of employment that he sexually assaulted Thompson, Raby, and Leslie.

I pulled these horrible facts from The Scott Fetzer Co. v. Great Am. Ins. Co. (6th Cir. 4/30/19) [pdf], an insurance coverage dispute relating to the long-since-resolved underlying claims brought by Thompson, Raby, and Leslie.

I hope, however, we can all spot the mistakes made here in screening and hiring Fields.

    1. It’s no longer acceptable to limited criminal background checks on employees locally or regionally. Our society is mobile, and the background checks we are conducting on potential hires should reflect this mobility by being national in scope. Almost all criminal records are available online, and there is really no excuse to do anything other than a national search.
    2. When you discover that an employee has lied about their criminal background, the only resolution is termination. The employment relationship is all about trust, and when that trust is broken the relationship is irreparably damaged.
    3. I’m all for second chances and redemption, but an individual with a history of rape and domestic abuse is un-hireable. Convince me otherwise.
    4. Why rehire someone after they are released from prison for rape, especially with all of this back story? This fact is the most head-scratching of them all.

There was little chance this story was going to have a happy ending. Let’s all learn from it by reviewing our own background screening and hiring processes.

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I Really Thought People Knew Better Not to Advertise Jobs ‘for Whites’

Cynet Systems, an IT and engineering staffing company, had a viral mess on its hands over the weekend after it posted a job that asked for candidates, “Preferably Caucasian.”

Helana McCabe asked a very simple question on Twitter:

Uh, hey @cynetjobs – what’s with this?

Your job listing for a mid-senior level business development position’s top qualification is “Preferably Caucasian”

How could you POSSIBLY think that’s okay?

Uh, hey, it’s very, VERY not OK.
Her tweet, at the time of publication, received 11,249 likes, 6,752 retweets, and 622 comments.

It took Cynet Systems 44 hours(!) to respond, with this tweet:

Cynet apologizes for the anger & frustration caused by the offensive job post. It does not reflect our core values of inclusivity & equality. The individuals involved have been terminated. We will take this as a learning experience & will continue to serve our diverse community.

Its CEO, Nikhil (Nick) Budhiraja, initially tweeted that the job posting was a “terrible mistake,” and that the person responsible had been sent for retraining. Apparently, someone told him that the company needed to take a stronger stand against racism, because that tweet no longer exists, and “sent for retraining” is now “terminated.”

A few thoughts.
First, what the holy hell? Do we not know better in 2019 (not to mention, 2009, or 1999, or 1969 … or, really, ever) that we can’t advertise jobs for “Caucasians”? This is HR 101. There should not be any lesson that needs to be taught here, period.
Second, you can prefer age, sex, religion, or national origin, but only if it’s a bona fide occupational qualification for the position. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission, of the employer’s business. A classic example of a BFOQ is safety-based mandatory retirement ages for airline pilots. Race or color, however, can never, ever be a BFOQ.
Third, this is not a training problem. If your recruiters do not know that they cannot prefer white candidates, they should not be recruiting for you.
Finally, 44 hours is way too late to respond to a 2019 crisis. When a story goes viral, your company needs to get out in front of it immediately. As bad as this crisis is, Cynet Systems made it that much worse by waiting almost two full days to publish its response. Cynet Systems has now been labeled as a racist company. The offensive job posting certainly created that perception, but its 44-hour delay in responding let the story, and the perception it created, percolate and fester. Every hour you let a viral story go un-responded-to adds time exponentially to undo the harm, if it can ever be truly undone.
So let this be a lesson to you and your business. Know who’s hiring for you, know what they are posting and do not wait to respond to bad press or bad social media.
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Personal Lessons in Communicating Change

At the start of the year, I took a personal crash course in navigating organizational change. Despite consulting on issues around change management for most of my career, I learned it’s a different animal when you’re right in the middle of it yourself. Going through a big change reinforced a lot of what I know — and it gave me some new insights.

The source of all this change? My company, Benz Communications, joined forces with The Segal Group on Jan. 1. By absolutely all measures, this was — and is — an awesome step for our team, our business and our clients.

Segal is an 80-year-old privately held employee benefits and HR consulting firm that works with an amazing group of clients around the country. Our communications team doubled from 30 to 60 people, and we are so proud to be part of an organization with Segal’s history, values, people and clients. One of my favorite comments from a member of my team was “I feel like I just got an even better job — along with 30 of my best friends.”

Still, all the good stuff doesn’t mean change isn’t hard.

One of the things I learned is that it takes people a while to digest information when they are caught off guard. Fortunately, we were able to share our news in person with the Benz team during our annual end-of-year celebration in November.

But they were expecting to enjoy the time with colleagues and rejoice in all the great work we created during the year; no one was expecting me to announce a huge organizational change like this. That kind of surprise, no matter how good the news is, creates anxiety.

Also in Benefits Beat: Make Benefits and Internal Communications Inseparable

One of my team members said, “I know your lips were moving, but I didn’t absorb a thing you said.” It highlights an important lesson for corporate communicators, reinforcing why you have to give people time to absorb information and why you need to say things many times and in multiple ways.

It was also a reminder that leaders and employees experience change in entirely different ways. When I talk to clients about this, I tell them to remember that leaders have more context, more insight, more control and more notice.

It takes people a while to digest information when they are caught off guard. No matter how good the news is, surprise creates anxiety.

Those factors make it hard to put themselves in employees’ shoes. Even so, I was surprised by how big a blind spot I had in predicting my team’s concerns. Fortunately, people felt comfortable telling me exactly what they and their colleagues needed (it helps to have several communications consultants among them!). But over and over, I was disappointed in myself for not being able to anticipate their concerns on my own.

One example: Benefits changes are hard — even for a team of benefits experts. We didn’t have much time to move the Benz team onto Segal’s systems and benefits.

It’s hard getting up to speed on new programs, understanding how they compare to the old ones and making decisions — especially when you have so many other questions and concerns bubbling around. And present discomfort obscures long-term gain.

Our benefits package at Segal is far richer than what we had as a small business — we have a 401(k) match and a pension plan! But when your prescription ID card doesn’t arrive and you’re at the pharmacy with a sick kiddo, you’re not thinking about your pension plan.

And that was a big lesson for me. In times of change, not only do you need to communicate more, but you also need to thoughtfully engineer the small stuff.

Also in Benefits Beat: Employers Should Be Bold With Their Benefits

Go above and beyond to make sure there are no kinks in the systems or information flow. I recently caught up with a longtime friend and client who works for a large global corporation. She is immersed in M&A all year, because their business strategy relies so much on acquiring new companies. She said they have perfected almost everything about acquiring new companies — except delivering medical plan ID cards. That’s still a huge pain point for new employees and the one thing that continues to be a disconnect. It’s the small stuff.

I hope these personal anecdotes will help you navigate your next big change. While they are the lessons learned, we did plenty of things the right way, too.

Most importantly, we started from a place of trust and transparency, built from an employee-centered culture. And we joined an organization that shares our core values and also prioritizes doing the right thing for employees. Those are the best things any organization can have to help navigate the inevitable changes ahead.

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In Lamps Plus v. Varela, Supreme Court Signs Off on Death by a Thousand Cuts

Jon Hyman The Practical Employer

Lingchi was a form of torture and execution used in China from roughly 900 BC until China banned it in 1905.

It translates variously as the slow process, the lingering death, or slow slicing. It’s more commonly known as “death by a thousand cuts,” in which the torturer uses a knife to methodically remove portions of the body over an extended period of time, ultimately resulting in death.

On April 24, in Lamps Plus v. Varela, the Supreme Court held that parties to an arbitration agreement cannot be required to arbitrate their claims as a class action unless they specifically agreed to do so in the arbitration agreement.

Management-side employment lawyers will herald this decision, along with Epic Systems v. Lewis (which held that agreements that compel employees to waive their rights to file or participate in class or collective actions and individually arbitrate their claims are valid under Section 7 of the National Labor Relations Act), as the death knell for wage/hour and other employment law class and collective actions. And, they are probably right. But, is this result a good result for employers?

I’ve previously discussed by distaste for arbitration as a forum for employment disputes. In sum: I do not think it’s the panacea many employers believe it to be; employers should instead consider jury trial waivers to cut the risk of runaway juries, and contractually shortened statutes of limitations to otherwise limit risk.

Also, however, consider whether by preventing employees from litigating claims as class or collective actions you are inflicting lingchi on your business. Yes, class actions are large, and unwieldy, and expensive. But they also offer the opportunity for finality. You will resolve the issue in one lone (albeit large) case. Alternatively, if you require employees to litigate their wage/hour claims (for example) in individual lawsuits, instead of facing one claim, you will expose your business to dozens, or hundreds, or thousands of individual claims, each carrying with it a small amount of damages for unpaid wages, and a large exposure for an attorneys’ fee award in each case. And while attorneys’ fees are the number one risk factor for employers in wage/hour class and collective actions, would you rather expose yourself to one potential award of fees, or dozens, hundreds, or thousands? And, don’t forget about arbitration fees, which, often times, employers are contractually obligated to pay in full.

So, before you jump on the class-action waiver bandwagon, talk to your employment lawyer and consider whether it’s really in the best interest of your business. Do you want one larger cut, or thousands of smaller ones?

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This Disability Discrimination Lawsuit Was No Party

Jon Hyman The Practical Employer

Party City has agreed with the EEOC to pay $155,000 to settle an ADA lawsuit the agency filed on behalf of a rejected job applicant on the autism spectrum and suffering from severe anxiety.

According to the lawsuit, the individual had been receiving services from Easter Seals of New Hampshire to build up her self-confidence, including working and applying for a job. These services included a job coach.

When the Party City interviewer learned that the woman accompanying her to her interview was a job coach, the EEOC alleged that his entire attitude changed.

The hiring manager told the job coach that Party City had hired people with disabilities with job coaches in the past and that it had not gone well, and made disparaging comments about those emp­loyees. Although both the applicant and the job coach explained to the hiring manager that the applicant had been successful shadowing others in previous retail jobs, the hiring manager was uninterested in either the applicant’s abilities or in the limited role the job coach would play. … The hiring manager tried to cut the interview short by telling the job coach in a patronizing tone, “Thank you for bringing her here,” while the applicant was still in the room. The hiring manager also stated, in the applicant’s presence, that the Party City employee who had encouraged the applicant to apply would hire anyone, and would “even hire an ant.”

Per EEOC regional attorney Jeffrey Burstein, “Federal law requires employers to consider disabled job applicants based on their abilities, not on demeaning stereotypes.” Adds Kevin Berry, director of the EEOC’s New York District Office, said, “Allowing this applicant to work with a job coach in her early weeks of employment would not have caused an undue burden on Party City. The ADA requires employers to make this type of reasonable accommodation so as to enable qualified people with disabilities to join the workforce, which is a win-win for everyone.”

Four takeaways from this lawsuit and settlement:

    1. An employer’s obligation to consider and offer reasonable accommodations does not just extend to employees, but also to applicants. Employers cannot shirk their ADA responsibilities just because the person needed the accommodation is just an applicant.
    2. Past bad experiences with other employees or applicants are not a valid reason to deny a reasonable to a current employee or applicant. Reasonable accommodations are individualized, and must be considered on an individual-by-individual basis. Telling someone that you can’t offer an accommodation because of past bad experiences with others is a recipe for an expensive (and difficult to defend) lawsuit.
    3. A job coach is potential reasonable accommodation you must consider when presented by a disabled employee or applicant. You have to then engage the individual in the interactive process and determine how to offer that accommodation, if possible.
    4. Party City did the right thing by recognizing that it mishandled this applicant and settling this lawsuit through early mediation. It could have avoided the whole problem, however, by ensuring that those involved in hiring for its stores understand their reasonable accommodation obligations to disabled applicants. Indeed, I’d go so far as to say that no one should be doing any interviewing or hiring without ADA and reasonable accommodation training. This risk is just too great.
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Does Title VII Protect Heterosexuals From Discrimination?

Jon Hyman The Practical Employer

So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst

Suppose you own a company, and one of your employees posts this rant on her personal Facebook page.

Further suppose that in addition to owning the company, you are also a lesbian and take offense to the employee’s views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?

In O’Daniel v. Industrial Service Solutions, the 5th Circuit said no.

The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.

The court held that under its own precedent, O’Daniel could not move forward on her claim.

O’Daniel claims in essence that she was retaliated against because she “opposed” discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover “sexual orientation.” … Because the law in this circuit is clear, we cannot accept O’Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the “trend” has upended them.

Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee’s complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: “Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits.”

Two points to make about this opinion.

First, if Title VII equates LGBTQ discrimination to “sex” discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.

Second, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: “Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity.”

If the employee ranted against interracial marriage, and the company’s African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee’s right to express bigoted views on her personal Facebook page or otherwise.

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How to Fire an Employee

Jon Hyman The Practical Employer

The Wall Street Journal recently asked this simple question:

What’s the Best Way to Fire Someone?

I have some thoughts.

    1. Before you pull the trigger, ask yourself, “Is this employee going to perceive that the decision was fair.” Did the employee have notice of the issues that caused the termination? Had the employee recently complained or otherwise engaged in protected activity? To look at this issue another way, mock-jury your decision. If the employee lawyers up and sues, will a jury think your decision was fair? If jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much more likely to find in the employer’s favor.
    2. Do not mistreat the employee at the time of termination. Terminated employees deserve a face-to-face discussion. At all costs, avoid firing by a letter, phone call (or, worse, voice mail), email, text message, Facebook post, Tweet, or any other not-in-person communication. Do not “perp walk” a fired employee. Some employees deserve to be shown the door swiftly and coarsely. They stole, they harassed someone, or they assaulted someone. For most terminations—the “you’re not a good-fit,” the “it just isn’t working out,” the “we’re going in a different direction”—you want to do what you can to avoid litigation, or the employee trashing you on Glassdoor and other review sites. And not perp walking the fired employee is a great first step.
    3. Offer the employee some explanation for your decision, but understand that if sued, you better be able to back that decision up, else a judge or jury might find your decision to be pretext for an unlawful reason. Offering no reason leaves an employee to scratch their head, which takes us right back to point 1 above—”If they don’t have a reason (or won’t tell me the reason, is this decisions fair?” Offering too detailed of a reason could lead to issues of proof in litigation down the road, and could open turn your conversation into a debate (which is the last thing you want). Instead, look for the Goldilocks reason—the “just right” amount of an explanation so that the employee understands the rationale. If you’ve previously communicated to an employee documented performance issues, there is no point in rehashing them at termination. It accomplishes nothing and can be perceived as cruel. Instead, simply remind the employee that you’ve previously discussed the issues, which have not improved. Further, the more detail you provide, the more penned in you will be in later litigation. Your goal is to be honest with the employee, yet, in the event of litigation, provide your counsel with the most flexibility to support the termination.
    4. In all but the most egregious of terminations, offer a soft landing through a severance package … but only in exchange for a release of claims by the employee. Some employees deserve nothing (theft, harassment, etc.). But, most should walk out the door with something. While you are not under any legal obligation to provide severance to any employee (unless you have a plan or policy that says otherwise), there is a lot of value in getting their signature on an agreement in which they promise not to sue you. It’s closure, for both you and the employee, and helps create that little bit of good will at the end of the relationship.

The bottom line? Firing an employee the wrong way — a termination text message, a perp walk, and zero dignity — leads to bad feelings, which leads to expensive and time-consuming lawsuits.

Also read: HR Leaders Reevaluate Termination Policies in Wake of Workplace Shooting

Never forget that losing a job is one of the worst things that can happen to someone. A little compassion goes a long way. 

Also read: How-to HR: Offboarding Employees — Terminations

What are your top tips for the “best” way to fire an employee? Leave your thoughts in the comments below, @ me on twitter with the hashtag #terminationtips, or on LinkedIn by posting a comment in this thread.

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ADA Does Not Require a New Supervisor as a Reasonable Accommodation

Jon Hyman The Practical Employer

Cindy Tinsley was so stressed.

How stressed was she?

Tinsley was so stressed that even something as simple as her co-workers at Caterpillar Financial Services bouncing stress balls off the ground would trigger her post-traumatic stress disorder.

Tinsley, who worked as a business system analyst for Caterpillar Financial, believed that the stress of her job was causing her to suffer adverse health issues. She emailed her supervisor, Paul Kaikaris, asking to be removed from a particular project, claiming that her “many [work] responsibilities … [were] causing [her] to be stressed beyond what [she was] physically able to handle,” which “negatively impact[ed her] work, sleep, and overall health.”

Kaikaris met with Tinsley and said he would see what he could do to take work off her plate. Six days later, however, Tinsey submitted a doctor’s note requesting four days off for a “confidential medical condition.” Upon her return, Kaikaris, good to his word, met with her and reassigned some of her projects.

Her job performance, however, continued to suffer. Kaikaris informed Tinsley that she was not following the prescribed methodology for completing her work, the quality of her work was subpar, and she had been leaving work early without prior approval. A poor formal mid-year review and a performance improvement plan followed.

In response, Tinsley claimed that Kaikaris rated her poorly and assigned the PIP in retaliation for her complaints that he had enabled a “hostile work environment” by permitting co-workers to bounce stress balls off the ground. Thereafter, Tinsley began submitting doctors’ notes ad seriatum requesting more time off for “mental and emotional duress brought on by an over-excessive workload, unrealistic deadlines, a hostile work environment and a manager’s reckless indifference to [her] mental and emotional well-being.” Those notes culminated in the company granting a five-week FMLA leave of absence.

At the end of Tinsley’s FMLA leave, her doctor cleared her to return to work “at full capacity.” However, because of her “post-traumatic stress disorder,” her doctor recommended that Caterpillar Financial return her “in a different work environment and specifically under a different manager.” The company refused the transfer or managerial change, but did permit her to take an additional eight weeks of medical leave (totaling 18 for the year).

At the end of that leave, and with Tinsley still insisting on a new manager, Caterpillar Financial decided that it had enough. It told her that it could not accommodate her “confidential” medical condition and that it did not believe that her request for a transfer to a different supervisor was a reasonable accommodation.

In Tinsley v. Caterpillar Financial Services, the 6th Circuit agreed.

Tinsley has asserted that her impairment (PTSD) impacted only the major life activity of working.… Thus, we must now examine whether Tinsley’s PTSD sufficiently limited her ability to perform a class of jobs or a broad range of jobs. The evidence demonstrates that it did not.… [T]he record is replete with undisputed evidence showing that Tinsley’s issues stemmed directly from Kaikaris’ management style as opposed to the responsibilities of a broad range of jobs. The clearest example of this is when Tinsley told Human Resources that she would be able to continue in the same position so long as she was under the direction of a different supervisor because her disability was triggered by “the way [Kaikaris] managed … with all the balls bouncing.” … Tinsley’s diagnosis does not limit her ability to work a broad class of jobs; rather, it relates solely to her ability to work under a specific manager. Accordingly, she is not “disabled” pursuant to the ADA and was thus not entitled to a reasonable accommodation of additional time off or a transfer.

The ADA covers working as a major life activity. However, for an employee to be “substantially limited” in that major life activity, it is not enough to be unable to perform the specific job. The employee must be “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.”

This court reached the absolute correct result. It wasn’t that Tinsley couldn’t work as a business system analyst but that she just could not work under Kaikaris. Her own doctor said as much when he released her to return to work “at full capacity.”

If faced with a disabled employee claiming a substantial limitation in their ability to work, examine the request carefully. The ADA’s coverage of disabilities is broad. However, it is often difficult for an employee to establish “working” as a substantially limited major life activity. And, unless the employee cannot work in a class or broad range of jobs, the ADA does not cover them and you don’t have to offer to accommodate.

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How HIPAA-Compliant Are Digital Health Apps?

Andie Burjek, Working Well blog

I recently received a pitch about how Amazon’s Alexa now has a “HIPAA-compliant upgrade” through which people can book appointments, ask health care questions and check on the status of prescription deliveries. The immediate reaction of my editor and me was, “How can this possibly be HIPAA-compliant?”

I bring this up because I’ve also recently read a Washington Post article about a pregnancy tracking app that claims to be HIPAA-compliant. And there was a lot to unpack here. From a patient advocacy perspective, a lot of scary things to unpack.

Before I get into that, a quick anecdote from my high school years. My dad gave me some job advice I’ve never forgotten. Watch out for yourself and if you want to quit, don’t feel guilty about leaving a company you don’t want to be working at anymore. If the tables were turned and the company had to sack a bunch of people, it’d feel no guilt about letting you go. It would make a non-emotional business decision. Employers mostly watch out for themselves, and employees should too. Loyalty can only go so far.

I know that many employers tout a “culture of health” nowadays and make broad claims about how much they care about the health of their employees. As a benefits and health writer, I don’t buy that. Not for nefarious reasons, but because I know that at the end of the day, it’s all about the business. That’s their No. 1 priority. Just like my career should be my No. 1 priority. To believe otherwise is naïve.

Also read: Trendy Digital Health Firms Seek Solutions to Questions It Never Thought to Ask

I’d argue that this self-interest extends to health plans. As this Washington Post article stated, “The real benefit of self-tracking is always the company. People are being asked to do this at a time when they’re incredibly vulnerable and may not have any sense where that data is being passed.”

How can employers benefit from self-tracking? Through digital health apps that employees sign up for, employers could access aggregate data of employee health; the data is “de-identified,” which means it’s stripped of information like name, social security number and email addresses that could be used to identify the patient. Employers who don’t pry into these anonymous identities can still use this data to understand the overall health of its organization and identify issues that afflict many employees, which could help inform and shape its health strategy.

As for sneakier employers, the article notes that it’s “relatively easy” for companies to identify patients (in this case, women using the pregnancy app) “based on information relayed in confidence, particularly in workplaces where few women are pregnant at a time.” Someone could, for example, cross-reference the app’s data with other data. This potentially could impact people’s health care costs or coverage.

An excerpt:

The apps, [health and privacy experts] say, are designed largely not to benefit the women but their employers and insurers, who gain a sweeping new benchmark on which to assess their workers as they consider the next steps for their family and careers. … Experts worry that companies could use the data to bump up the cost or scale back the coverage of health care benefits, or that women’s intimate information could be exposed in data breaches or security risks.

This is why I’m skeptical about digital health apps. I’ve heard arguments on both sides, but if it’s possible for someone’s private medical information to be used against them, how is that OK? Why aren’t there more protections for patients? And how could current patient protection rules be up to date with the digital age?

To quote an informative article from The Verge: “In 1996, the year Congress passed its landmark health privacy law [HIPAA], there was no Apple Watch, no Fitbit, no Facebook support groups or patients tweeting about their medical care. … [It] is still a key piece of legislation protecting our medical privacy, despite being woefully inadequate for dealing with the heath-related data we constantly generate outside the health care system.”

The Post article brought up something else noteworthy: the app’s 6,000 word “terms of use” agreement that women must consent to. A lot of us in the health space have probably heard the statistic of how few people know how to define basic health care terms like “deductible” and “premium,” suggesting low health literacy rates among people. So how is a person supposed to understand the legal and health care jargon in a 6,000-word “terms of use” agreement? Is that realistic? Do people really know what could happen with that data?

Further, according to the article, while a spokeswoman said the company doesn’t sell aggregate data for advertising purposes, the “terms of agreement” tell a different story. The company has a “royalty-free, perpetual, and irrevocable license, throughout the universe” to “utilize and exploit” de-identified personal information for scientific research and “external and internal marketing purposes.”

Digital health companies are a relatively new thing. And in any communications they make — whether it’s a press release, an executive’s quote in the media or the employee they pick to make a statement to the press — they’re marketing themselves. Of course the focus will be on the positive.

That’s why it’s healthy to be critical of these new institutions that have the potential to greatly impact people’s lives, health and security. If nobody pushes forward to seek change that could protect people’s health privacy, then the future health care environment is not going to be a safe place for patients. Patient advocacy groups should have a greater say in how these digital health companies operate. Insurance companies and employers can easily benefit from the wide array of data in these apps, but what about patients?

Candice Sherman
Candice Sherman

One final thought comes from an interview I had about six months ago with Candice Sherman, the CEO of the Northeast Business Group on Health. The NEBGH released a fascinating guide about genomic medicine and employers that came from a roundtable including many key stakeholders, including employers, clinical experts, benefits consultants and genomic vendors. The missing stakeholder was a patient.

Also read: New Wellness Bill HR 1313 Gets Flak for Genetic Privacy Concerns

I asked Sherman about that, and she explained how health privacy concerns would stop patients from participating in a discussion like this. I do understand this, logically — and I am by no means trying to criticize Sherman or the NEBGH roundtable, since I love that they met up to have a discussion on a health-related topic that’s only going to become more prominent.

That said, I think it would be valuable for businesses or business groups to find a way to include the patient stakeholder in conversations like this. Maybe through an advocacy group or an expert who can make sure to represent the patients’ interests without experiencing the same privacy concerns. There are options.

This is a lot of information, but this topic is important now and it’s not going anywhere anytime soon. In summation, de-identified, aggregate data doesn’t always stay anonymous; just because a digital solution is HIPAA-compliant doesn’t mean it’s necessarily harmless to a patient; and patients deserve to have their voice represented in health care conversations.

I understand the power of data for organizations to understand big picture trends, but if this data could easily be used against an employee, it’s not worth it.

Health data privacy is important. I’m curious what discussions we all must have and how laws should be rethought to represent patients — your employees.