Category: Legal

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The Legality of Precertification Communications With Potential Class-action Members

Jon Hyman The Practical Employer

Your nightmare as an employer has just become your reality.

A disgruntled former employee has launched a wage and hour class action lawsuit against you.

You’d like to get out ahead of the game by having your lawyers start marshaling your evidence. For example, they’d like to interview employees and gather affidavits in opposition to the eventual motion for class certification.

But can they?

Our rules of legal ethics prohibit us from communicating with represented parties. But they also make clear that putative class members (that is, precertification individuals who could be included in the future class) are not yet represented. They only become represented if the class is certified, or if the collective action is certified and they opt in.

For this reason, it’s been nearly three decades since the Supreme Court ruled that defense counsel is permitted to contact putative class members before a class is certified. Indeed, courts only limit these precertification communications to class members if:

  • The communications to class members misrepresent the status or the effect of the pending action.
  • They have an obvious potential for confusion and/or adversely affecting the administration of justice.
Following these rules, courts have permitted communications that:
  • Sought affidavits from employees to oppose class certification (here).
  • Advised employees to contact the company’s attorney with questions about the pending case (here).
  • Attempted to resolve the specific damage claims of each potential class member (here).

Courts only prohibit or otherwise limit defense counsel’s precertification communication with putative class members if there is a specific showing that the communications attempted to coerce putative members into excluding themselves from the class, undermined cooperation with or confidence in plaintiffs’ counsel, or suggested retaliation for participating in or assisting the class.

Thus, if you are sued in a class-action lawsuit, consider implementing reasoned precertification communications with your employees as part of your defense strategy.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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The Greatest Book Ever Written About Labor Relations Is…

Jon Hyman The Practical Employer

Last week I came across an article titled, “Business Wisdom From 10 Classic Children’s Books.”

Its premise is that books with the simplest language often contain the most complex ideas, and that children’s books offer us a whole lot of real-world business wisdom.

I was surprised, then, when I discovered that this list omitted the No. 1 book ever written about labor relations — Click Clack Moo, Cows That Type.

I first wrote about Click Clack Moo all the way back on May 24, 2007. And since I realize that many of you have not been with me from the blog’s beginnings, I thought this was as good a time as any to step into the Wayback Machine to revisit this classic.

“Farmer Brown has a problem. His cows like to type.”

So starts Click Clack Moo, Cows That Type

In Click Clack Moo, Farmer Brown’s cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on an old typewriter. When Farmer Brown refuses their demand, they go on strike, withholding milk and eggs.

Ultimately, Duck brokers a deal. Farmer Brown agrees to accept the cows’ typewriter in exchange for electric blankets. The labor dispute ends, and the cows and hens went back to producing milk and eggs.

The deal backfires on Farmer Brown, though, as Duck absconds with the typewriter and leverages it for a diving board for the pond.

Click Clack Moo teaches us some valuable lessons:

    1. Fair Treatment: The best means to avoid collective action by your employees is to treat your employees fairly. The barn was cold, and the cows and hens perceived that they were being forced to work in intolerable conditions. When Farmer Brown refused even to consider any concessions, they went on strike. If you want your employees to work hard, not unionize and not file lawsuits, treat them fairly. Maintain reasonable, even-handed work rules and policies. Apply them equally. Don’t discriminate. There is no guarantee that you’ll stay out of court, but if you end up there, you’ll have a much easier time convincing a judge or jury of the rightness of your decision if they perceive you as having been fair, reasonable, and even-handed.
    2. Litigation is an Answer, But Not Always the Best Answer: Even in employment cases, where there are so many emotions in play on both sides of the table, it is only the most frivolous of cases that cannot not be resolved at some dollar figure. It is the job of the employer, working with its attorney, to strike the right balance between the cost of litigation and the cost of settlement. Convictions often get in the way, and often times litigation and trial is the only means to an end. But, you should always keep an open mind towards a resolution.
    3. Don’t Go It Alone: When resolving any case, make sure all your loose ends are tied up in a tidy agreement. Farmer Brown missed this last point. A well drafted agreement that included Duck would have avoided the added expense of the diving board. If Farmer Brown had retained competent counsel, he could have potentially avoided the problem with Duck (who probably went to law school).
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The 9th Nominee for the Worst Employer of 2018 Is … the Retaliator

Jon Hyman The Practical Employer

Today, I take you to lovely Riverside County, California, home of Palm Springs, Joshua Tree National Park, the Coachella Music Festival … and the ninth nominee for the Worst Employer of 2018.

Until his termination on May 7, 2018, Andrew Yeghnazar had, since 2010, worked as the president of Blacoh Fluid Control, Inc.

What did Blacoh Fluid Control (allegedly) do to earn its nomination?

It retaliated … a lot.

Yeghnazar’s complaint reads like a law school exam in an employment law class. If you’ve ever been to law school, you know that it’s not a good analogy to be part of.

Yeghnazar alleges that he complained about Blacoh’s CEO, Diana Vise.

‣ About her alcoholism.
‣ And drug abuse.
‣ And memory loss.
‣ And failing to show up to work.
‣ And embezzlement.
‣ And tax fraud.
‣ And calling an African American employee the “token black guy.”
‣ And refusing to hire a candidate because he was “too fat.”
‣ And prohibiting the hiring of anyone “more beautiful” than her.

The result?

An administrative leave for Yeghnazar, followed a few days later by his termination.

Any one of these (alleged) retaliatory acts in the court document might be enough to a spot on my list.

But all of them might make you the worst employer of 2018.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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Biometric Privacy Lawsuits Rising

You can hardly pick up a smartphone these days without reading about — and experiencing — how biometric authentication technology is changing our lives and businesses.

Finger and facial recognition have become so commonplace that you might not think twice before asking your employees to authenticate their time using similar technologies, especially because traditional punchcard systems can be inefficient and vulnerable to fraud or abuse.

But a recent spike in litigation illustrates the legal risks to introducing biometric authentication devices and practices to your business. More than 50 companies are now defending class-action lawsuits under the Illinois Biometric Information Privacy Act, or BIPA, which provides rules for the disclosure, retention and protection of biometric data, and permits any person aggrieved by a violation to recover $1,000 for each negligent violation and $5,000 for each intentional violation.

Texas and Washington have passed similar laws, and New York has a labor law governing the collection of biometric information, but unlike BIPA they do not create an individual right to sue.

BIPA governs “biometric identifiers” and “biometric information.” Biometric identifier means “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.” Biometric information means “any information … based on an individual’s biometric identifier used to identify an individual.”

To comply with BIPA, companies that collect or possess biometric identifiers or information must satisfy six statutory provisions.

  1. Written policy. Companies must have a policy, “made available to the public,” that describes their retention schedule and guidelines for permanently destroying the biometric data it handles. Importantly, the policy must provide for the destruction of a person’s biometrics at the earlier of (a) when the company’s initial purpose for collecting that information has been satisfied; or (b) within three years of the person’s last interaction with the company.
  2. Written notice. Companies must provide written notice to each person whose biometrics it handles, stating (a) that it is collecting/storing their biometrics; and (b) the specific purpose and length of term for the collection, storage and use.
  3. Written release. Companies must obtain a “written release” from each person whose biometrics will be handled.
  4. Consent to disclose. Companies that disclose biometrics to third parties must, in most circumstances, obtain consent to do so.
  5. Safeguard. Companies must store, transmit and protect the biometrics it handles in a manner that is both reasonable and commensurate with the protection it affords similarly confidential and sensitive information.
  6. Do not use biometrics for profit. Companies must never sell, lease, trade or “otherwise profit from” the biometrics it handles.

Courts Interpreting BIPA

Though BIPA was enacted in 2008, it was not the subject of litigation until the past few years, and the most dramatic uptick in filings occurred in late 2017. The majority of those actions involve the same basic factual situation: a current or former employee is suing because they scanned their finger to clock in and out of work.

But the most important BIPA case so far, decided Dec. 21, 2017, has a slightly different context. In Rosenbach v. Six Flags, the plaintiff, Stacy Rosenbach, sued Six Flags Entertainment Corp. and Great America LLC under BIPA for scanning her son’s fingerprints to verify his identity as a season pass holder. The Illinois Appellate Court ruled that a plaintiff “must allege some actual harm” to sue under BIPA, adding that “[i]f a person alleges only a technical violation of [BIPA] without alleging any injury or adverse effect, then he or she is not aggrieved and may not recover[.]”

The Illinois Appellate Court’s ruling makes sense. First, looking to BIPA’s language, only a “person aggrieved” is permitted to sue, strongly indicating that a plaintiff must allege an actual injury. Second, from a practical perspective, the vast majority of plaintiffs acknowledge voluntarily scanning their own fingers. Even so, this decision is poised to have far-reaching implications, and it seems likely that the authoritative interpretation of “person aggrieved” will ultimately come from a future decision of the Illinois Supreme Court.

With all this in mind, what can you do to minimize the risk and expense that biometric privacy class actions pose to your business?

First, determine whether any biometric privacy laws apply to your business. This may require consulting with an attorney familiar with biometric privacy laws and professionals who understand your underlying technologies. Even if your business does not collect biometric data from Illinois, Washington, Texas or New York residents, consider whether it might in the future or whether similar laws may be adopted in applicable jurisdictions (Michigan and Connecticut are considering similar laws). Second, if biometric privacy laws apply, understand the requirements and get into compliance. Regardless of whether you have been sued, you will need to determine whether your existing policies and practices satisfy some or all of the biometric privacy legal requirements. For those policies and practices that are noncompliant, you will need to design and implement new ones. Finally, if you have been sued, then in addition to assessing and remediating compliance issues, your attorney will need to consider employing certain strategies inherent in these cases with the potential to reduce litigation costs and increase your chance of success.

The recent spate of BIPA lawsuits represents a coordinated effort by the plaintiff’s bar to catch corporate legal departments off guard. Nevertheless, it is less likely an anomaly than a sign of things to come as biometric technologies continue to pervade our personal and business lives. Companies would do well to assess their technological and legal options and vulnerabilities now and to maintain vigilance over this emerging field in the future.

Patrick J. Castle is an attorney and Anna S. Knight is administrative managing partner with Shook, Hardy & Bacon in Chicago. Comment below or email editors@workforce.com.

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Addressing #MeToo in the Workplace and HR’s Response

The Civil Rights Act, which protects employees against discrimination both in and out of the workplace, was passed in 1964. More than 50 years later, sexual harassment and discrimination are still prevalent, and employees are demanding change.

The past year brought to light numerous new allegations of behaviors many people thought were long gone. While there seems to be an epidemic of sexual harassment in certain industries, no industry is immune. Employees have lost patience and are demanding change through the #MeToo movement. Human resources departments are stepping up to join the conversation and take advantage of the dialog to positively impact organizations and eliminate sexual harassment and discrimination. Harassment and discrimination boil down to respect. Whether an employee is protected by federal or state law, companies with a culture of respect are going to be more successful in their efforts to eradicate harassment.

While companies may already have policies in place, employers can no longer assume that employees are exclusively treating each other in this way. Leadership and HR must take an active role in ensuring that respect is part of the daily culture and not solely rely on policies that merely fulfill compliance requirements.

Employers must think strategically about a focused plan surrounding diversity, inclusion and equality in the workplace. This plan should include effective training, empowerment and leadership.

Training

In 2016, a report published by the Equal Employment Opportunity Commission’s Select Task Force on the Study of Harassment in the Workplace found that sexual harassment training hasn’t helped to decrease harassment in the workplace. HR is left questioning, “Is it the training that has failed? Or is it the culture around the training?” If training is merely thought of as checking the box, then the EEOC’s findings aren’t surprising. But if employees are internalizing what they’re learning and it’s affecting the culture, then it can have a positive impact. To be effective, it takes more than implementation. Employees need to be held accountable for their actions beyond attendance of these seminars. Training can be the first step to institute culture change, but it has to be done right and be current with the times and the laws.

A successful training program should cover the key components of the harassment policy as outlined by the EEOC and any additional state-mandated guidelines. Managers should be equipped with additional resources on handling complaints, escalating complaints to the appropriate person within the organization and conducting investigations. Due to the importance and sensitivity of the training, it’s recommended that it be done in smaller groups and face-to-face, rather than through videos or webinars where employees could more easily tune out what is being said.

Empowerment

While training is the first step to educate employees about harassment and discrimination, as history has taught us, training alone isn’t enough. It’s critical that training and HR programs not only outline what to do when faced with harassment, but employees and managers are empowered to act as well. It’s become increasingly evident in the last year that employees don’t always feel comfortable speaking up. The common theme coming out of the #MeToo conversation has been that employees felt they didn’t have options and harassment was necessary to get ahead in their careers. Fear of retaliation was and is real, resulting in many employees not coming forward until the empowerment of #MeToo. Children are taught at a young age not to be bystanders and to stick up for others. Empowering employees in the same way is the key to changing the workplace culture to one of respect.

Lead By Example

Empowerment will only happen if the leadership of an organization embodies its core values and sets an example. Lip service to harassment policies isn’t enough. Employees need to see leadership and HR take action. A powerful employee can no longer be able to get away with it simply because of their stature in an organization. No employee, including top performers, are above the law and to truly create a workplace of respect, leadership needs to take action

The #MeToo conversation has sparked a shift in how we view harassment in the workplace. Employees are not willing to sit by and tolerate harassment. Awareness of harassment and the laws aren’t enough. Action has replaced reaction and HR is at the forefront of implementing this change. In the past, action around harassment and discrimination may have taken a backseat to other seemingly more “pressing” HR needs, and now these issues are taking a more front and center role through education, knowledge, empowerment and leadership.

Rebecca Blake is the managing director and Nancy Saperstone is the senior HR business partner and communications specialist at employee benefits company OneDigital. Comment below or email editors@workforce.com.

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Harassment Prevention Must Start at the Top

Jon Hyman The Practical Employer

If you did not watch the May 20 edition of 60 Minutes, you should. 

The last segment detailed pervasive and rampant sexual harassment by famed chef and TV personality Mario Batali.

And it laid much of the blame at the feet of the CEO of one of the restaurants in which Batali invested, The Spotted Pig, and its owners, Ken Friedman and April Bloomfield. The segment argues that Friedman and Bloomfield turned a blind eye to years of Batali’s sexual harassment of the female employees of their restaurant and knowingly allowed it to continue.

In the report of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, the agency suggests four pillars to any effective anti-harassment program. Its first pillar is that harassment prevention “starts at the top.”

According to the EEOC:

Workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment.… Organizational cultures that tolerate harassment have more of it, and workplaces that are not tolerant of harassment have less of it.… If leadership values a workplace free of harassment, then it will ensure that harassing behavior against employees is prohibited as a matter of policy; that swift, effective, and proportionate responses are taken when harassment occurs; and that everyone in the workplace feels safe in reporting harassing behavior. Conversely, leaders who do not model respectful behavior, who are tolerant of demeaning conduct or remarks by others, or who fail to support anti-harassment policies with necessary resources, may foster a culture conducive to harassment.

If you believe the 60 Minutes report (I have no reason not to), none of this occurred at The Spotted Pig.

If you want ensure you are doing everything you can as an organization, start by taking a hard look at yourself and your leadership and answering these key questions:

  • Do you foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted?
  • Does you behavior communicate and model a consistent anti-harassment commitment?
  • Have you devoted sufficient resources to effective harassment prevention efforts?
  • Have you nurtured an environment in which employees are comfortable coming forward with complaints of harassment that will be taken seriously, investigated, and corrected, all free from retaliation?
  • Do you impose swift, proportional, and consistent discipline (without playing favorites or showing favoritism) when you have found harassment to have occurred?
  • Do you hold managers and supervisors accountable for preventing and responding to workplace harassment?

Unless you’ve answered “yes” to each of these six questions, then I suggest that you are not doing everything you can to create a top-down, holistic, anti-harassment strategy. Which means that you are not doing everything you can to protect your most valuable asset … your employees.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

 

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7 Things Employers Must Know About the I-9 Form

Jon Hyman The Practical Employer

Earlier this week, the Trump administration announced that it has doubled the number of worksite investigations and audits conducted by Immigration and Customs Enforcement.

Its express goal is to make sure businesses are not employing people who are in the U.S. illegally.

What is such an audit? Simply, it’s a review of business records, specifically I-9s.

In light of this news, over the next two posts I’ll be taking a deeper look at employers’ obligations to comply with immigration laws. Today, we’ll examine the I-9 itself, and tomorrow we’ll discuss what to do (and, maybe more importantly, what not do) if ICE or another agency shows up at your door asking about I-9s.

What do you need to know about the I-9 Form? Here are seven important things that should be front of mind:

    1. I-9s are low-hanging fruit for any employer. The government makes the form available online, complete with instructions to how to fill it out.
    2. You must complete an I-9 at the beginning of employment for every employee you hire (except for employees hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times). It does not apply to independent contractors (but be wary of who is, and is not, a bona fide independent contractor).
    3. An employer’s I-9 obligations do not depend on the citizenship of the employee. All employees means all employees, regardless of citizenship or nationality.
    4. All employees also means all employees regardless of tenure or length of service. The obligation to retain an I-9 for each person hired applies from the date of hire, even if the employment ends shortly thereafter or if the hired employee never completes work for pay.
    5. Employers must retain I-9s for the later of three years from the date of hire, or one year from the date of termination. You can choose to retain them on paper, microform (really), or electronically.
    6. You may choose to copy or scan documents an employee presents when completing an I-9. Making photocopies of an employee’s document(s), however, does not take the place of completing or retaining the I-9 itself. If you choose to retain copies of an employee’s documents, to avoid a Title VII violation you must do so for all employees regardless of actual or perceived national origin or citizenship status.
    7. The Department of Homeland Security, the Department of Labor, and the Immigrant and Employee Rights Section of the Department of Justice are all authorized to inspect an employer’s I-9 forms.

Also read: Raids on 7-Elevens a Stark Lesson in I-9 Immigration Compliance

And this is where we’ll pick up tomorrow: What do you do when then feds show up at your door?
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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Sympathetic Does Not Always Equal Protected Under the ADA

Jon Hyman The Practical Employer

Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.

When an opinion starts with this quote, you know that the plaintiff is not going to have a good day.

What happened in Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. 4/30/18) to garner this tough life lesson from the court?

Victor Sepúlveda-Vargas worked as an assistant manager in a Puerto Rico Burger King owned and operated by Caribbean Restaurants. While making the nightly bank deposit, Sepúlveda was robbed at gunpoint, hit over the head and had his car stolen. As one might expect, Sepúlveda did not come out of the incident mentally unscathed. In fact, he suffered post-traumatic stress disorder and major depression.

Caribbean Restaurants requires its managers to work rotating shifts, and considered the requirement an essential function of the job — to spread among all managers the burden of working undesirable shifts.

Those rotating shifts would have required Sepúlveda, upon his return to work, from time to time to work the night shift on which he was robbed and assaulted. Instead, he requested a set schedule as a reasonable accommodation.

Initially, the employer granted Sepúlveda’s request. A couple of weeks later, however, it reconsidered and retroactively denied the accommodation, informing Sepúlveda of the essential nature of the rotating schedule.

Sepúlveda sued, claiming that that Caribbean Restaurants failed to reasonably accommodate his disability in violation of the ADA.

As you’ve likely gathered from the lede, Sepúlveda lost, based on the rotation as a essential function. The court was not only un-persuaded by Sepúlveda’s story, but also by the fact that the employer had initially granted the accommodation.

While … Caribbean initially granted Sepúlveda the accommodation on a temporary basis, that fact did not mean that it conceded that rotating shifts was a non-essential function.… To find otherwise would unacceptably punish employers from doing more than the ADA requires, and might discourage such an undertaking on the part of employers.

Essential functions are called essential for a reason. And while I can see an argument that waiving one by granting an accommodation lessens its essential-ness, this court saw it differently. An employer may (but is not required to) go above and beyond that which the ADA requires. And to punish an employer for doing so will only serve to deter employers from exceeding the ADA’s requirements in the future.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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The 8th Nominee for the Worst Employer of 2018 is … the Age Discriminator

Jon Hyman The Practical Employer

Today’s nominee for the Worst Employer of 2018 is Seasons 52, a national, Orlando-based restaurant chain.

Last week, it agreed to pay $2.85 million to settle a nationwide class age discrimination lawsuit brought by the EEOC. The lawsuit included significant direct evidence of age discrimination.

From the agency:

The EEOC’s lawsuit sought relief for applicants age 40 and older that had been denied front-of-the-house and back-of-the-house positions at 35 Seasons 52 restaurants around the country.

During the course of the litigation, over 135 applicants provided sworn testimony that Seasons 52 managers asked them their age or made age-related comments during their interviews, including: “Seasons 52 girls are younger and fresh,” “Most of the workers are younger,” “Seasons 52 hires young people,” or “We are really looking for someone younger.”

If you reject older job applicants as a matter of corporate policy, you might be the worst employer of 2018.

Previous nominees:

The 1st Nominee for the Worst Employer of 2018 Is … the Holy Harasser

The 2nd Nominee for the Worst Employer of 2018 Is … the Arresting School Board

The 3rd Nominee for the Worst Employer of 2018 Is … the Camera Creep

The 4th Nominee for the Worst Employer of 2018 is … the (in)Humane Society Harasser

The 5th Nominee for the Worst Employer of 2018 is … the Political Pension Preventer

The 6th Nominee for the Worst Employer of 2018 is … the Sadistic Sergeant

The 7th Nominee for Worst Employer of 2018 Is … the Pregnancy Provoker

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
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This Is How You Reasonably Accommodate a Disabled Employee

Jon Hyman The Practical Employer

I’ve spent a lot of time over the past 16 months discussing bad employers — those that so mishandled employees that they earned a spot on my list of America’s Worst Employers.

Today, I thought I’d take a look at the brighter side — an employer that handled a tricky employee issue correctly.

Jablonski v. WalMart (9th Cir. 4/26/18) concerns an issue that often confounds employers and presents many opportunities for mistakes that lead to difficult lawsuits — the sick or injured employee who needs repeated reasonable accommodations.

Lidia Jablonski worked as a supervisor in the dairy, frozen and meat departments of a Las Vegas WalMart. She took 12 weeks of FMLA following a workplace injury suffered from a falling box of frozen chicken.

Here is how WalMart accommodated Jablonski’s injury following her FMLA leave:

  • Near the end of her leave, WalMart reached out to Jablonski to see if she needed an additional leave of absence, which it granted upon her request.
  • When that leave expired, Jablonski’s doctor certified her to return to work under certain temporary restrictions. Accordingly, WalMart offered, and Jablonski accepted, a 90-day temporary cashier position under WalMart’s Temporary Alternate Duty program.
  • Ultimately, Jablonski’s doctor released to permanent light-duty restrictions. Two supervisors met with her and offered the only vacant position at the store at the time that fit her restrictions, as a part-time cashier.
  • Jablonski declined the offer, stating that she could only accept a full-time cashier position. Since there was no such position available, WalMart considered her “voluntarily terminated.”
Jablonski sued, and lost. And appealed, and lost.

As noted by the court of appeals:

WalMart officials corresponded with her about her leave, granted multiple leave requests, and spoke to her about her future position. WalMart offered Jablonski several accommodations: personal leave when she ran out of FMLA leave, a ninety-day TAD position that accommodated her medical restrictions, and eventually a permanent cashier position — which she rejected. Jablonski argues that WalMart should have transferred her to another store. But she did not ask to be transferred at the time, and she has not presented any evidence that there were vacant positions for which she was qualified at other stores.

The lessons?

    1. When you can demonstrate a documented history of accommodating an employee’s disability, you make it that much more difficult for the employee to establish discriminatory animus, even if you later deny an accommodation request or even terminate the employee.
    2. The ADA does not require employers to be mind readers. If an employee does not request a certain accommodation as part of the interactive process, an employer is not obligated to offer it. Thus, even though Jablonski later complained that WalMart did not offer her a full-time cashier position at a different store, she also did not ask for a transfer to an open position.
    3. The ADA also does not require employers to create positions that do not exist as accommodations. It only requires transfers to open and available positions for which an employee is qualified. Thus, WalMart had no obligation to create for Jablonski a full-time cashier position within her store. Because the only open and available position was part-time, WalMart met its obligation.
Next time you are faced with the difficult situation of a disabled employee who needs repeated accommodations, think of WalMart and this case, and ask, have we done all that we could have done for this employee, or is there more we can do? How you answer this question will tell you if you have best positioned yourself to defend a discrimination or reasonable accommodation lawsuit.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.