Whatcha doin' two weeks from today?
Want to grab some breakfast with me? Maybe hear about what's hot at the EEOC and get a legal roadmap for managing the aging workforce?
In you're in the Philadelphia area and would like to learn more about these topics, then come on down to our offices on Thursday, April 24 at 8:30 AM for a free presentation with a complimentary continental breakfast. Lawyers can get CLE. HR credits will also be offered.
The only bad news is that you'll have to hear me flap my gums for an hour about best practices to avoid becoming an EEOC target. And since I can't seem to blog my way out of a paper bag, you can imagine how (in)articulate I'll be. Fortunately, my co-presenter from the EEOC, Mary Tiernan, will rock thy world.
Plus, my Dilworth Paxson colleagues will school you on the legal issues of which you should be aware when dealing with your older employees.
If you are interested in attending, click here for more details and to RSVP.
Mention this blog and I'll get you an extra pat of butter to go with your continental breakfast.
After all, I take care of my VIPs.
When Congress enacted the Americans with Disabilities Act Amendment Act, which went into effect on January 1, 2009, it indicated that one of its purposes was to "convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."
I vaguely recall some of the floor discussion in anticipation of the passage of the ADAAA:
"I yield to the Senator."
"Thank you, Senator. With all this discussion about amending the Americans with Disabilities Act to more broadly define the definition of disability, I wonder aloud whether we need to explicitly include playing golf and -- err -- making whoopie in that list of major life activities that includes with sleeping, walking, standing, lifting, and bending. I'm just sayin is all..."
"Yeah, probably not necessary. I yield the floor..."
Well, guess what?
In this federal appellate decision issued late last month, that's basically what the court said.
A plaintiff sued his former employer alleging a violation of the ADA. The employer claimed that the plaintiff's back injury did not constitute a disability. Except, the plaintiff's physician submitted an affidavit, which stated that the the back issues impacted the plaintiff's ability to walk, bend, sleep, and lift more than ten pounds.
Noting that each of these activities is specifically enumerated in the list of ADA major life activities, the court had little trouble concluding that the plaintiff was, indeed, disabled.
But, then, there was that sex and golf thing. Although not specifically listed as major life activities, they're kind've a big deal:
"Second, although Mr. Mazzeo testified at his deposition that his back problems only affected his ability to play golf and have sex, the district court read that testimony too broadly. The questions that were posed to Mr. Mazzeo did not contain a specific time frame, making it unclear whether his answers referred to how he felt before his operation in March of 2009, or after his operation...We therefore do not think that Mr. Mazzeo's deposition testimony warranted summary judgment in favor of CRI."
The implication here is that if the plaintiff's pre-operation back trouble substantially limited his ability to [insert one of many golf double entrendres here], then he is disabled.
So, learn from this case. No, I'm not saying [insert one of many golf double entrendres here]. What I am saying; however, is that if an employee comes to you requesting an accommodation for a purported disability, don't expend a lot of brain cells contemplating whether the employee is disabled.
Instead, focus your energy on discussing with the employee what reasonable accommodation(s) will allow that employee to perform the essential functions of the job.
P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. It's practically a major life activity.*
*Not really. Actually, not at all.
My Dilworth Paxson colleagues, Matthew Whitehorn and Richard Smolen, recently published an important alert about how keeping good employee records now can help protect your business from future "play or pay" penalties under the Affordable Care Act (Obamacare).
You can view a copy of it here.
Tomorrow, I plan to be less lazy and actually have a post of my own.
P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. Guaranteed 50% less snarky than this blog.
*Guarantee does not apply in the continental United States or anywhere else where human life may be found. So, yeah, no guarantees.
I was on such a roll this week.
You guys were digging the heck out of my peeing in the breakroom post, David Crosby the alcoholic, and the one about a supervisor offering cash to sleep with an employee's wife.
You know who even read that last one? Scan down to the blog comments. Yep, that's a comment from the plaintiff himself. OMG!!!
But, can you hear the crickets now? I mean, cue the tumbleweed, because if there's anything that grinds momentum to a halt here at The Employer Handbook, it's a post about the Fair Labor Standards Act.
But, since the Third Circuit Court of Appeals, which is in my hood and surely knows what a jawn is without me having to hyperlink that jawn, issued this precedential opinion on FLSA successor-in-interest liability yesterday. So, it's the least I could do.
Well, the least I could do is cut right to the chase. So, here's the money shot:
"The imposition of successor liability will often be necessary to achieve the statutory goals [of the National Labor Relations Act and Title VII] because the workers will often be unable to head off a corporate sale by their employer aimed at extinguishing the employer's liability to them. This logic extends to suits to enforce the Fair Labor Standards Act....In the absence of successor liability, a violator of the [FLSA] could escape liability, or at least make relief much more difficult to obtain, by selling its assets without an assumption of liabilities by the buyer (for such an assumption would reduce the purchase price by imposing a cost on the buyer) and then dissolving."
So, buyer beware and either pay less for the acquired company or ---
Hey, is anyone still here? Bueller?
Last night, I read this press release from the United States Equal Employment Opportunity Commission, announcing a $2 million recovery for 50 male employees of a New Mexico automobile dealership.
What happened, you say? From the press release:
"In its lawsuit, the EEOC charged a former lot manager, James Gallegos, under the direction of Charles Ratliff, Jr., then general manager, with subjecting a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals. The EEOC also alleged that Pitre retaliated against male employees who objected to the sexually hostile work environment. During the pendency of the lawsuit, the retaliatory actions of Pitre raised such concern that a U.S. District Court judge granted a preliminary injunction against Pitre, prohibiting the dealership and all of its agents from threatening or engaging in retaliatory actions against case participants."
Now, that is some messed up ish.
(Gawd, if I had a nickel for every time I used that line in a court filing...)
So, here's my HR pro-tip of the day: Grab your employee handbook. Turn to the anti-harassment policy. If it doesn't specifically reference same-sex sexual harassment, then update that jawn right away.
Because the EEOC is taking it hella-seriously
(that nickel thing again...)
On Monday, it was public urination.
Yesterday, we had indecent proposals.
And today, the blogging gods, in which I hold a sincerely-held belief, serve me up this federal court opinion about an alcoholic named David Crosby -- not that David Crosby, but still -- who sued his former employer for supposedly violating the Americans with Disabilities Act, as a result of his termination of employment after a 30-day stint in rehab.
Oh, sweet child! Someone catch me; I do believe I have the vapors.
Let us rejoice in the bounty together, after the jump...
When the supervisor offers an employee $$$ to have sex with his wife, that's not gender bias, you guys
Terribly sorry about the confusion created by my sloppy use of possessive pronouns in today's lede. The "his" wife refers to the employee's wife. Otherwise, this post doesn't make any sense, does it? (Don't spend too much time contemplating the question, ok).
Yep, just another Tuesday at The Employer Handbook.
Click through for what should prove to
be a cluster of a gender discrimination claim contain many valuable takeaways for proactive employers.
The guy who was fired for peeing in a cup in front of his co-worker claims disability discrimination
I'm pretty sure Larry David had this written into the Seinfeld Parking Garage episode before making a last-minute script change to uromysitis.
I would have stuck with the former. But, Mr. David is a comedic genius and I just write this crappy blog.
How bad is this blog, you ask? I was contemplating using the words "wicked pissah" in the lede, only to realize that I'd already used them.
Then again, you're the ones reading this. Go ahead. Click through to read more after the jump...
* * *
Sorry, gang. Last night was my fantasy baseball auction. And I got home hella-late. So, no post today.
Ahhhhhh, I can't totally leave you hangin'. So, you can read about how the University of Northwestern football team can now organize and form a union (here), or you can grade my fantasy baseball team (right) in the comments below.
Oh, no. Meyer's slacking. Let the unsubscribes begin!
(Well, maybe, I can salvage this with some Adele Dazeem).
Have a nice weekend.
We've certainly seen it with respect to social media policies; especially, where these policies purport to limit the rights of employees to discuss their employment with one another. This is because Section 7 of the National Labor Relations Act allows employees to discuss their terms and conditions of employment together.
And you don't need to have a union either. The act applies in most every private-sector workplace.
So, whether it's employees gabbing about how their workplace sucks, or how they are being underpaid, you can't forbid that.
This holds true even if you have a workplace policy which categorizes wages as "confidential." The National Labor Relations Board won't have any of that.
And, most recently, the Fifth Circuit Court of Appeals reaffirmed it in this case, by underscoring that "a workplace rule that forbids the discussion of confidential wage information between employees patently violates section 8(a)(1) [of the Act]."
Indeed, even a workplace rule that doesn't expressly lump wages into the definition of "confidential information" can still be overbroad and, therefore, unlawful.
The company's "confidentiality" policy highlighted in the Fifth Circuit opinion didn't mention wages explicitly. Instead, it precluded discussion of company "financial information, including costs." Both the NLRB and the Fifth Circuit concluded that an employee could reasonably construe this language to preclude discussion of wages.
Therefore, when drafting your confidentiality policy language, consider carving out wages and benefits specifically, or more narrowly defining your confidential information so that a reasonable person wouldn't read the policy to preclude discussion of their paycheck.
Image Credit: Minneapolis Institute of Arts on Flickr
Employee comes to you with a leave request in which he potentially qualifies for FMLA. Must you provide it?
Break 'em off Eleventh Circuit Court of Appeals:
"The plain text of the [FMLA] provides a cause of action against employers who 'deny the exercise of or the attempt to exercise, any right provided under this subchapter.' Nothing in the statute speaks of 'potential rights.'"
So, the answer to today's "Fact or Fiction" is fiction.
However, remember that if an employee comes to you requests leave that potentially qualifies as FMLA leave, you still must ascertain whether the employee's absence actually qualifies for FMLA protection.
And don't forget that the employee doesn't need to use the letters "FMLA" in order for his leave to qualify under the FMLA. So, educate your supervisors and others who may receive leave requests to know the type of leave that could qualify as such under the FMLA, and to respond accordingly.
Court reasons that unreasonably withdrawing a reasonable accommodation is reason for employee to win ADA suit
Maybe it's a few years of light duty to accommodate your employee's bad back. Maybe it's keeping your employee with medically-documented sleeping issues off of the graveyard shift.
Or maybe, like in this case, it's allowing an employee who takes morning meds for ADD and bipolar disorder to arrive to work a late, so the meds can kick in. Indeed, for 2 1/2 years, the employee in this particular situation was accommodated with modified start time.
But following a change in management at the company, without explanation, the employer unilaterally withdrew the accommodation. Just like that.
So, the employee brought a failure-to-accommodate claim under the ADA.
Now, you may be thinking, can an employer really do that? Can it just stop accommodating an ADA-disabled employee without some sort of justification or demonstrating undue hardship?
Funny, that's what a federal judge was thinking when he not only denied the employer's motion for summary judgment, but also granted the plaintiff's cross motion:
"Crane had already made a reasonable accommodation to enable Isbell to do her job -- for some 2-1/2 years it had accommodated the later-starting work schedule that she had requested to meet her special needs for the performance of her job responsibilities. No real reason has been proffered by Crane as to why a new management broom, who (not incidentally) had no prior knowledge of Isbell's special arrangement or of the needs that had prompted it, should be entitled to start by subjecting her to a one-size-fits-all timing sweep. Indeed, as already indicated in the preceding paragraph, such uniformity of treatment is precisely what the underlying purpose of the ADA rejects."
* * *
Because the undisputed facts, even when construed in Crane's favor, demonstrate that Isbell could and did adequately perform her essential duties for over two years with the reasonable accommodation of a 10 a.m. start time, Crane's sudden replacement of that start time with a more onerous schedule without considering her known disability plainly constituted an unreasonable failure to continue to accommodate that disability under the ADA.
Does this mean that employers who offer long-term accommodations are stuck providing them for life? No. One option is for the employer and employee to re-engage in a good-faith interactive dialogue to determine what other accommodation(s) may allow the employee to perform the essential functions of her job.
But, to discontinue an accommodation altogether, an employer will have to demonstrate that the existing accommodation has become an undue hardship.
Image credit: Eyemage on Flickr
Last month, a daughter's Facebook post cost her father an $80K age-discrimination settlement (more on that here).
Last week, with some Facebook shenanigans, the plaintiff in a sexual harassment case screwed herself over.
(See what I did there?)
Heather Painter used to work for Dr. Aaron Atwood D.D.S.
According to Ms. Painter, one day at work, the good doctor -- err, dentist -- just happened to climb on top of her with his pants undone and held her down.
Dr. Atwood didn't exactly deny those allegations; however, he claimed that he was only attempting to tickle Ms Painter* and that the sexual nature of their relationship was consensual.**
[* Editor's Note: Like, with his penis? Ok, just kidding....]
[** Editor's Note: Ms. Painter was Dr. Atwood's babysitter too. Not kidding about that.]
Anyway, during litigation, the defendants, the dentist and his practice, wanted to obtain copies of Facebook posts from Ms. Painter in which she supposedly commented about how much she enjoyed her job, how Urgent Dental was a great place to work, and how Dr. Atwood was a great boss and she enjoyed working
under with him.
Ms. Painter's counsel conceded that her client deleted those Facebook comments and that she deleted those comments after she retained counsel for this litigation. However, Ms. Painter argued that she should avoid court sanctions because the posts were not relevant and Ms. Painter was only 22 and didn't know any better that it's improper to destroy potentially relevant evidence after you sue someone.
The Court was, shall we say, non-plussed (opinion here):
"Plaintiff had an obligation to preserve her Facebook comments; she deleted the comments with a culpable state of mind, and the comments were relevant to Defendants' claim. Although Plaintiff's counsel may have failed to advise Plaintiff that she needed to save her Facebook posts and of the possible consequences for failing to do so, the deletion of a Facebook comment is an intentional act, not an accident, and the Court cannot infer that Plaintiff deleted Facebook comments which stated that she enjoyed working for Defendant Dr. Atwood, after she contemplated the instant litigation, for an innocent reason."
To sanction the plaintiff, the Court ordered the factfinder (i.e., the jury) should infer that the deleted Facebook posts undermine Ms. Painter's sexual harassment claims. Next to outright dismissal of the case, this is as bad a sanction as a court can order.
Given the potential that social media evidence can have on claims and defenses in an employment case, judges, like the one in the Painter case, do not tolerate intentional destruction of relevant social media content. Even accident erasure of this information may result in sanctions.
So, to all you employees and employers out there, be aware that, once there arises a reasonable anticipation of litigation, all potentially relevant evidence -- including social media content -- must be preserved. This is especially important for employers (and their counsel) who may be responsible for informing multiple employees of this duty to preserve.