From the blog that brought you "Can a bridge worker with a fear of heights have a viable ADA claim?," comes news of a recent federal-court decision which -- well -- you read the title to this blog post.
RRRRRRRRRRRRRRico v. Xcel Energy, Inc. [cue music] the plaintiff, an apprentice lineman working for a utility company, was ordered by his doctor not to climb utility poles due to a back injury suffered on the job. The plaintiff alleges that he sought a transfer and, instead of getting that transfer, was terminated and told to apply for long-term-disability benefits. Plaintiff alleges that the defendant then offered him a job at a lower rate of pay as a "substation electrician," which the plaintiff accepted. The defendant allegedly also eliminated Plaintiff's three years of seniority as an apprentice lineman.
The plaintiff subsequently sued for disability discrimination. The defendant argued that the plaintiff's back injury was not a disability, as defined under the Americans with Disabilities Act Amendments Act. The court, however, disagreed and kept the case alive so that the plaintiff could develop a factual record which may indicate that his back injury "substantially limits [his] to perform a major life activity as compared to most people in the general population."
So, what can we learn from this post?
- My song choice was weak, at best.
- Under the ADAAA, it's not hard for a plaintiff to prove that he/she is disabled. The Rico Court emphasized that this is not a lofty burden. Therefore, when an employee comes to you requesting a reasonable accommodation for a workplace injury, more likely than not, that employee is disabled. So, focus instead on engaging in an interactive dialogue to determine what reasonable accommodation(s), if any, will allow the employee to perform the essential functions of the position.
- Don't lose the forest for the trees. It may seem obvious that an essential function of being a utility worker is to -- you know -- climb utility poles. However, under the ADA, an employer must still consider reasonable accommodations for a disabled employee that can't get up the pole. Maybe, a temporary light-duty restriction. Or a transfer to another open position for which the employee is qualified. (Heck, according to this recent case, accommodation through appointment to a vacant position is reasonable and, absent a showing of undue hardship, an employer must implement such a reassignment policy).
powered by Fotopedia
In the beginning of the year, I wrote here about a federal-court decision, which recognized that LinkedIn connections are not company trade secrets. Earlier this month, that same court, in the same case, was asked to decide whether hijacking an employee's LinkedIn account may violate the Computer Fraud and Abuse Act (CFAA).
In Eagle v. Morgan, the plaintiff, Dr. Eagle, claimed that her former employer had locked her out of her LinkedIn account for 22 weeks. Thus she was "unable to receive 'invitations to connect, business opportunities and ongoing communications with clients, potential clients and other business and personal contacts.'"
Sounds fairly vague to me. Besides, they have this thing called the telephone...
Anyway, the Court put the kibosh on Dr. Eagle's CFAA claim. It recognized that the CFAA permits a plaintiff to recover for loss related to the impairment or damage to a computer or computer system. However, a "loss" does not extend to potential business opportunities, especially speculative ones -- like the kind that may develop from connecting on LinkedIn.
How could all of this have been avoided? By better defining at the outset -- during the employment relationship -- whether Dr. Eagle's LinkedIn account belonged to Dr. Eagle or the company. With respect to issues involving ownership of social media accounts, I'll repeat three tips from a post earlier this year:
- Start with a written social-media-specific agreement. This document should clearly set out the rights and expectations of the company and its employee. Also, include social-media language in your other broader-based non-disclosure agreements.
- Change the password when employees leave. Make sure that you know the account password at all times and immediately change it when employees leave your company. That will reduce the risk that your former employee will act first and lock you out.
In August, Mr. Clayton was employed as a deckhand on a boat in Louisiana -- that is, until one of his white co-workers allegedly raised a wrench to Clayton and told him to get his "stupid mother f**king n**ger ass" off the boat. Mr. Clayton promptly complained to Human Resources and was transferred to another of the defendant's boats.
In September, Mr. Clayton again reported to Human Resources that his new co-workers continued to say "n**ger," among other comments, around him. Allegedly, HR responded by telling Mr. Clayton to "lighten up." Allegedly, later that day, after telling one of his co-workers to stop using the word "n**ger" on the boat, that co-worker attacked Mr. Clayton from behind.
After the physical altercation, Mr. Clayton skedaddled to another boat and called 911. While waiting for a police response, Mr. Clayton claimed that the co-worker who attacked him yelled out to Clayton, "Come out mother f**ker!"
Out of fear, Mr. Clayton jumped into the water and swam 30-40 feet to the shore.
He then sued for race discrimination, among other things. The employer moved for summary judgment, arguing that Mr. Clayton had not met his burden of establishing a tenable hostile work environment claim. The court (in this opinion), however, disagreed, underscoring that the incidents at issue were pervasive, hostile, and based on race:
Here, while there may be some incidents of hostility towards Clayton that do not deal specifically with his race, the facts provided indicate the majority of the harassment was race-based, and there is evidence that Clayton personally experienced these hostile events...Further, the insults directed towards Clayton are alleged to have occurred numerous times throughout his employment with Defendant.
The Court also questioned whether the employer had an effective mechanism in place to address allegations of race discrimination, noting that it presented no evidence of a strict-harassment policy and failed to even reprimand anyone. The alleged "lighten up" comment probably didn't much either.
Employers: When your employee has to dive into the water and swim to shore in order to avoid his tormentors -- just thinking out loud here -- consider anti-harassment training.
And settling that case.
Earlier this month, the Supreme Court reconvened for its 2012-2013 term.
Although not chock full of pending employment-law cases, this term will see several important issues decided which could affect your workplace. Below, I have a collected a series of links to stories on these cases:
- "New Supreme Court Term Promises a Range of Labor and Employment Cases" by Lindsey Marcus and Jeff Nowak at Franczek Radelet P.C.
- "2012 SCOTUS Employment Law Preview!" from Phil Miles at LawfficeSpace.com
- "Employment Cases on the Supreme Court's 2012-13 Docket" from the folks at GPH Employment Law Blog
Of the five employment-law cases on the Court's docket, the one in which I am most interested is Vance v. Ball State Univ., where the Supreme Court will clarify just who is a "supervisor" for purposes of Title VII.
Today we have a guest blogger at The Employer Handbook. It's Caroline Ross. Caroline is a former educator who writes for accreditedonlineuniversities.com and specializes in distance education platforms and online program accreditation. She is an avid reader and advocate for global education and equality. Please submit any comments or feedback in the section below! Feel free to email her some comments!
(Want to guest blog at The Employer Handbook? Email me.)
When an employer is faced with a sexual-harassment lawsuit, one of its best defenses is that the company took reasonable care (e.g., policy, training) to prevent sexual harassment (and then addressed complaints in a manner that is reasonably designed to end the sexual harassment)
In EEOC v. Spud Seller (opinion here), the employer had an anti-harassment policy that detailed what constitutes sexual harassment and how to report it. Further, it specifically advised employees that, "You can feel state that your complaint will receive immediate attention and if the facts support your complaint, the offender will be disciplined."
Sounds good to me.
Except...the policy was printed only in English. And in Spud Seller, nine Spanish-speaking employees claimed that they were victims of sexual harassment. So, did the company take "reasonable care" to prevent sexual harassment? According to a Colorado federal court, maybe not...
The Handbook that contained the policy was in English, and there is no evidence that its provisions were translated into Spanish or that written translations were supplied to Spanish speaking employees...Second, there is a question as to whether the policy itself was sufficient - both on its face in English, and as to whether it provided a meaningful remedy for Spanish speaking employees...Due to the makeup of the workforce, assuming that a Spanish speaking employee had a complaint, she could not bring it directly to the persons identified in the policy because they did not speak Spanish.
The court further noted that the primary bilingual person who customarily explained the policy and interpreted for Spanish speakers was the alleged harasser.
If you have a multilingual workplace, please make sure to have your anti-harassment policy translated into multiple languages. Also, make sure that non-English speaking employees know to whom they can report claims of unlawful harassment.
Americans with Disabilities Act? No. Pregnancy is not a disability. Title VII of the Civil Rights Act? Well that depends. The Pregnancy Discrimination Act is part of Title VII. But the current state of law is such that employers need only treat pregnant employees as they would other employees with temporary disabilities. However, most employers do afford accommodations (e.g., light duty) to employees with temporary disabilities. So, they would have to do the same for pregnant employees too.
But do I smell some duplicative federal legislation after the jump? I sure do. Click through for details...
* * *
Last week, CA became the third state to pass a law that bans employers from requesting online usernames and passwords from employees and job candidates. Maryland was the first state to pass such a law; Illinois was the second.
As in the other two states, not only is it illegal to request online information, but also CA employers may not retaliate against anyone who refuses to turn it over.
There are two carve-outs in the CA law to protect legitimate employer interests. An employer may:
- require an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations; or
- require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
Meanwhile, in NJ, the Senate Labor Committee voted 4-0-1 in favor of a similar bill. Under the proposed NJ legislation, the aggrieved party may seek injunctive relief, compensatory damages, counsel fees and court costs. According to Law.com (here), the 1 absention came from a Republican Senator who wishes to amend the bill by removing that private cause of action.
That legislation now goes to Governor Christie for signature.
We're just a few months away from the Presidential election. That means that the debates are right around the corner.
Monday, started a week-long series of hypothetical debate question for the 2012 candidates for President and Vice President. Here are the questions I asked President Obama, Mitt Romney, and Vice President Biden.
And here's my question for Rep. Paul Ryan:
Your campaign website claims (here) that "unions drive up costs and introduce rigidities that harm competitiveness and frustrate innovation." Both you and Mitt Romney have been critical of the Employee Free Choice Act, a bill that would have made it easier for employees to unionize. Indeed, you once received a 7% approval rating with the AFL-CIO.Do you feel that unions today provide any benefit in America's workplace?And, if given the opportunity, would you repeal the National Labor Relations Act altogether?
To see what my fellow bloggers would ask Mr. Ryan, check out:
What would you ask Mr. Ryan at the '12 debates? Let me know in the comments below.
We're just a few months away from the Presidential election. That means that the debates are right around the corner.
And here's my question for Vice President Biden:
The White House (here) touts the Lilly Ledbetter Fair Pay Restoration Act as the first piece of legislation -- employment-law or otherwise -- signed into law during President Obama's first term. The President touts fair pay and equal rights, but there hasn't been a second significant employment law passed yet.Why hasn't there been a second? (Negative points if you blame the Republicans).
To see what my fellow bloggers would ask Mr. Biden, check out:
What would you ask Vice President Biden at the '12 debates? Let me know in the comments below. And be sure to come back tomorrow for a question to Paul Ryan.
Yesterday, started a week-long series of hypothetical debate question for the 2012 candidates for President and Vice President. Click here to see the softball that I tossed President Obama.
Let's see if I can raise my game for Mitt Romney:
As you know, the Family Medical and Leave Act provides job-security protections for qualifying employees with serious health conditions, loved ones with serious health conditions, or who need time off to care for a newborn. Presently pending in Congress are bills to expand the scope of the FMLA. For example, the Domestic Violence Leave Act would provide leave for workers to address domestic violence, sexual assault, or stalking and their effects. The Family and Medical Leave Inclusion Act would amend the FMLA to permit leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, grandchild, or grandparent who has a serious health condition.These efforts would broaden the law. But what if you had the power to repeal the FMLA altogether. Would you do it? And why?
To see what my fellow bloggers would ask Mr. Romney, check out:
What would you ask Mitt Romney at the '12 debates? Let me know in the comments below. And be sure to come back tomorrow for a question to Joe Biden.
Back in 2008, around this time, employment-law blogger Daniel Schwartz at the Connecticut Employment Law Blog rounded up some other bloggers to pose hypothetical debate questions to the '08 candidates for President and Vice President.
Four years later, Dan has resurrected this successful series and asked yours truly to join in. Today, the question goes to President Obama:
Protection of women's rights in the workplace seems to have been a priority for you since taking office. In 2009, you signed the Lily Ledbetter Fair Pay Act, which effects the statute of limitations for filing an equal-pay lawsuit, into law. The Patient Protection and Affordable Care Act, signed into law in 2010, includes workplace breastfeeding protections.Should you win reelection, what further changes would you make to workplace laws?
To see what my fellow bloggers would ask President Obama, check out:
What would you ask President Obama at the '12 debates? Let me know in the comments below. And be sure to come back tomorrow for a question to Mitt Romney.