The Employer Handbook Blog

"Oy, Sharon! Will you help me out here?"

"Come on, Ozzy! Yellow in the front, brown in ---."

"Bloody hell, Sharon! I'm trying to comprehend this federal court decision from the District of Minnesota."

"Was that the one Judge Schiltz authored?"

"Aye, Sharon."

"So, here's what I don't get. This fella goes to Mexico a few years ago, comes back to the States, and his employer fires him because the company "thinks" he has swine flu. Is that legal? Wouldn't that violate the Americans with Disabilities Act?"

"All that to-do over swine flu was bollocks, Ozzy. Pure rubbish. Turned out to be just a transitory illness; short in duration. That wouldn't qualify as a disability under the ADA."

"What about 'regarded as' disabled? Under the "regarded as" prong, a plaintiff need only prove that he was regarded as having an impairment; he need not prove that the impairment (if he had it) would have limited a major life activity. So, if the company thought this bloke was really sick, isn't that still disability discrimination?"

"No Ozzy. An employee is not 'regarded as' disabled if the impairment that he is regarded as having is both "transitory and minor.'"

"Yeah. Not like that time I bit the head off that bat in '82 at the Veterans Memorial Auditorium in Des Moines, Iowa. I got rabies shots for biting the head off a bat but that`s OK - the bat had to get Ozzy shots."

"Rabies isn't transitory, Ozzy. That, and Warner Brothers knew that you don't f**k with the 'Prince of Darkness.'"

"Aye, Sharon. Aye."

[Note: They never really said this. Well, except the part about the Ozzy shots. That's true.]

Mark Toth and ManpowerGroups's The Employment Blawg is hosting this month's Employment Law Blog Carnival: Special Holiday Edition, a collection of 18 blog posts from some of the best employment lawyers on the interwebz. Got questions? They have answers. So be sure to check that out. That's my gift (regifted, I suppose) to you.

Now the pay-it-forward part.

Daniel Schwartz at the Connecticut Employment Law Blog has a series of posts (here, here, and here) on the Newtown shooting tragedy. If any of my readers would like to help out with the relief efforts in CT, Dan has several links in his most recent Newtown post.

You have an employee who hurts herself on the job and becomes disabled. Although she recovers to the point where she can perform the essential functions of her position without the need for accommodation, she requests a transfer to another one of your facilities so that she has better access to ongoing medical treatment.

Does the law require you to grant that transfer?

In this recent case (Sanchez v. Vilsack), the Tenth Circuit Court of Appeals ruled that the Rehabilitation Act, which prohibits discrimination in federal employment, and courts interpret like the Americans with Disabilities Act, may require this.

Now, we all should know that federal law requires employers to provide a disabled employee with a reasonable accommodation, if needed, to allow the employee to perform the essential functions of her position. The exception to that rule is if the accommodation would cause undue burden to the employer. Then, the accommodation is not reasonable.

There are many types of reasonable accommodations. Where the employee can no longer perform the essential functions of her job, one such accommodation may include reassignment to a vacant position if the employee is qualified for the job. 

But even if the disabled employee can perform the essential functions of her position, the Sanchez Court opined that the law may require more of employers:

[E]mployers are not relieved of their duty to accommodate when employees are already able to perform the essential functions of the job. Qualified handicapped employees who can perform all job functions may require reasonable accommodation to allow them to (a) enjoy the privileges and benefits of employment equal to those enjoyed by non-handicapped employees or (b) pursue therapy or treatment for their handicaps. In other words, an employer is obligated not to interfere, either through action or inaction, with a handicapped employee's efforts to pursue a normal life.

Does this decision mean that all employers must permit disabled employees to transfer to seek medical treatment? Nope. Remember, if the transfer would cause undue burden to the employer, then it is not reasonable. Just remember that this can be a lofty burden. So be prepared to produce empirical evidence to justify denying the accommodation. Consider documenting transfer requests and the financial impact they have on your business. And don't forget to engage in an interactive dialogue with the employee to determine which, if any, other accommodations may be available and reasonable. Maybe, there is another accommodation that, other than a transfer, than can inure to the benefit of both the employee and the employer.

Like most employers, you likely have a workforce comprised of both non-exempt and exempt employees. Under the Fair Labor Standards Act, non-exempt employees who work more than 40 hours in a workweek must be paid OT. Employers don't need to pay OT to exempt employees.

Let's assume that, each year, you provide your workforce with a bank of paid time off. Let's further assume that you implement a policy that mandates that any additional leave be taken in unpaid full-day increments, event if the employee only needs a few hours off. 

Is that policy legal? Or does it violate the FLSA? The answer follows after the jump.

Continue reading "When can an employer require an exempt employee to take unpaid leave?" »

Today we have a guest blogger at The Employer Handbook. It's one of my fave employment lawyers from Twitter, Chuck Lawson.

Chuck is a member of the Labor and Employment group at Grant Konvalinka & Harrison, P.C., where he specializes in all phases of the employer-employee relationship, including wage and hour, FMLA, ADA, unemployment compensation, and discrimination/harassment law.

After the jump, Chuck is going to school you on some FMLA pitfalls that can trip up even the best employers -- and how to avoid them (the pitfalls, that is).

(Want to guest blog at The Employer Handbook? Holla at ya boy).

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Continue reading "How Employer Words and Actions Can Make FMLA Apply, Even When It Doesn't" »

I did one of these posts a few weeks ago, where I wrote about employees getting sacked for a Facebook post and then offered you -- the employment lawyers and HR pros -- the opportunity to second-guess the termination decision. 

Giving y'all the chance to weigh in nearly crashed my servers. So, let's try it again with a new set of facts. But, be easy on my hardware.

Rhonda Lee is a meteorologist for KTBS-TV. Oh, did I say "is"? I meant "was". She was fired based on two exchanges that occurred on the station's Facebook page:

[Click on the first one if you have difficulty reading it; it links to a larger version]

KTBS News Director Randy Bain released a statement that said, "If harsh viewer comments are posted on the station's official website, there is a specific procedure to follow. Ms. Rhonda Lee was let go for repeatedly violating that procedure after being warned multiple times of the consequences if her behavior continued."

Now that you've read the posts, the policy, and the company's position, put on your HR/lawyer hats, and go back in time to before KTBS-TV decided to terminate Ms. Lee. Tell me in the comments below how you would advise the station to proceed.

Good news for HR professionals!

That, according to this recent poll from CareerBuilder and EMSI, ranking the best jobs for 2013 requiring a bachelor's degree.

Coming in at #5 was "Human Resources, Training and Labor Relations Specialists." The numbers reflect that the profession has added 22,773 jobs since 2010, which represents 5% growth. Matt Ferguson, CEO of CareerBuilder, believes that the study results indicate that "[w]here the U.S. will produce the most jobs in 2013 is likely to follow growth patterns of the last few years."

So, if you are a transitioning human resources professional, hold your head up, and keep plugging away. Hopefully, blue skies lie ahead.

That's right folks. It's time for another edition of "Fact or Fiction" a/k/a "Quick Answers to Quick Questions" a/k/a QATQQ f/k/a "I don't feel like writing a long blog post."

The Family and Medical Leave Act permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances, such as caring for a parent with a serious health condition. Intermittent leave can be days, hours, or even minutes off of work. Indeed, when an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

When employees use minutes of intermittent FMLA, it's generally in the form of early dismissals or late arrivals to work. But what about FMLA leave during breaks and lunches, when the employee never actually leaves the office? Can that time be used for intermittent FMLA leave?

According to this recent case, periodic time away from one's desk throughout the work day -- but not out of the office -- is not FMLA leave. The court was "unable to locate a case where 'temporary' FMLA leave was awarded in such a context-where the leave given does not constitute time away from a place of work."

The answer to today's "fact or fiction" is fiction.

With the National Hockey League season in jeopardy, I imagine that Canadians are a fairly ornery bunch these days.

Even further north, hockey fans too are in turmoil. Reports from the North Pole have Mrs. Claus moping around. Morale amongst Santa's helpers is at an all-time low, causing toy production to drop 20%. And the elf of the shelf just flipped me the bird.

But it appears that no one is taking it harder than jolly old Saint Nick. 

According to this report from Shawn Jeffords at the Toronto Sun, last week, NHL Commissioner Gary Bettman dressed up as a mall Santa at a Toronto Christmas Market told a three-year-old waiting in line to sit on his lap that the Toronto Maple Leafs "suck."

The boy's mother than took to Facebook and put Kris Kringle on full blast:

Then he said, 'Oh, you're wearing a Toronto Maple Leafs tuque, you shouldn't be wearing that, they suck.' At that point, I took my son and told him we should go, Santa isn't being very good today.

The event organizers apologized, via Facebook, and then promptly terminated Santa's employment. 

But, folks, let me tell you. Santa is resilient. He dusted off his resumé, checked the online job boards, and quickly found new employment at a mall in Portland, Maine.

That is until, as The Daily Dot (via Mashable.com) reports here, a mom complained on the mall's Facebook page after Santa allegedly refused to let her six-year-old daughter sit on his lap because she didn't purchase a picture package. Here's a video of mom and daughter sharing this scrooge story. Now, Santa is once again out of a job.

And, rumor has it, he may be filing a national-origin-discrimination Charge with the EEOC.

Better settle the case, right?

Not if you're Flannery Oaks Guest House. Instead, you move for summary judgment and try to get your former employee's FMLA retaliation claim dismissed.

Was Andy Reid or Norv Turner calling that play? 

How do you think it worked out for ole Flannery Oaks? (Hint: it failed miserably). Find out for sure after the jump...

Continue reading "HR testifies that employee firing was FMLA retaliation (you read that right)" »

Yesterday, I spent a fun hour hanging out on Twitter with the folks from SHRM's We Know Next discussing 2012's HR victories and, then, what lies ahead for you good folks in 2013. 

A big thank you to SHRM and to those who were able to join us and participate. ICYMI, after the jump is a full recap of all the action along with the top song on the Billboard pop charts.

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Continue reading "HR'S 2012 performance review #nextchat" »

Translation: Recent HR / employment law developments that Meyer missed a/k/a Meyer needs to clear out his folder of bookmarked employment-law items to make room for his dork dorkier Fantasy Baseball bookmarks. Pitchers and catchers report in just over two months.

1. More courts weigh in on social-media discovery issues. "Good news. My doctor says that the itching and redness should subside in a few days." Recent court decisions (here and here) roadmap how you can access this and other Facebook status updates from your former employee who is now suing you. Have fun with that.


2. Other social-media-related litigation. A firefighter, allegedly terminated for critical Facebook comments, has settled his wrongful discharge claim (here). Facebook posts doom another employee's FMLA claims (here). The National Labor Relations Board crapped all over another employer's social-media policy (here). Choking back laughter (at least that's how I envision it), a Massachusetts Court denied another (the first ever?) hair salon's claim that a former stylist's job posting on Facebook violated a non-solicitation agreement agreement (here).


3. New study released on how companies are addressing employee social media use. Hey, as long as no one cuts me off from The Superficial, it's all good. Wait, that's not in the Proskauer report (here), is it?
   
   
4. And in non-social-media-related news, the EEOC releases its Performance and Accountability Report. You can either spend hours reading it (here), or, like me, just use Stephanie Thomas's killer infographic (here). Stephanie - You need to show me how to make those things! Love it!
   
   
5. Got questions about ADA confidentiality (who doesn't)? The Seventh Circuit has answers (here). 

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

*** Googles "sans," wipes brow while sighing in relief  ***

I'm not aware of any studies or surveys that the Sandbar Mexican Grill conducted on this subject. Instead, I imagine something like this:

Sandbar Customer: "Two please."

Sandbar Manager: "Sure. But before I seat you, do you see that bartender over there? She's *gasp* pregnant. That's why we have her behind the bar, instead of in your face distracting you from watching the Arizona Cardinals, losers of eight in a row. Given that it's Football Sunday, we even raised the bar an extra foot just in case her fetus is sitting high. And, as an extra precaution, we have a curtain between the bar and the employee bathroom so that you won't have to avert your eyes should nature call. We used to have a bucket behind the bar for her, but our lawyers frowned on that. Really, what am I saying is, should we just fire her? Uh, fellas?!? Come back! I'll make the other servers pee on sticks. Don't run away! I assure you, it's EPT; not that ClearBlue crap! Come one guys! Half-price Vodka/Rock Stars! Fellas! 

[Dramatization: Never occurred. Ever.]

Anyway, I gather that when the EEOC sued the Sandbar for pregnancy discrimination on behalf of a waitress whom the Sandbar had fired, the EEOC wasn't all that concerned with anecdotal or scientific evidence concerning customer preferences. That's the sense I got from this EEOC press release. Rather, the EEOC believed that the waitress was fired because she was pregnant -- as opposed to the Sandbar having a legitimate business reason.

So, is it legal to fire a female bartender at a sports bar because customers supposedly prefer their waitresses without baby bumps? Probably not, as we know from the Handbook's transparent attempt to boost SEO hard-hitting two-part exposé covering the Wild Beaver Saloon. 

But, a definitive answer will have to wait for another day. Wisely, the Sandbar, where "Shiturday" is just a dream, but kids eat free on Monday, settled with the EEOC.

Hey Employers!

Want to guarantee yourself a jury trial in an age-discrimination case? Just mention the word "younger" to any employee age forty or above right around the time you fire him.

[Editor's Note: Calling that employee an "old man," "old fart," "pops," and "grandpa" will also do the trick -- except, of course, in Texas]

*** Shakes head, orders brisket/rib combo ***

In Brazil v. Volkert, Inc., the plaintiff claimed that, just before he was terminated, one of the Assistant Vice Presidents told him, "Younger people are the future of the company." The company admitted that this comment was made, but claimed that it fired the plaintiff because work had dried up and the plaintiff refused a transfer.

Volkert moved for summary judgment. In hindsight, they should have spent that time preparing for trial, eh Middle District of Alabama?

In Mora v. Jackson Memorial Foundation, Inc, the Eleventh Circuit vacated the District Court's entry of summary judgment for the defendant because ... [the defendant] told the plaintiff when he was firing her that he "need[ed] someone younger I can pay less," but claimed that he fired the plaintiff solely for poor job performance. ... Similarly, in this case, Mrs. Harmening's statements to Mr. Brazil provide "sufficient evidence of a discriminatory motive which was the 'but for' cause of Plaintiff's dismissal."

Employers, I don't care how much sound rationale and pages of documentation you have to support a termination decision. If a decisionmaker admits using the word "young," "younger," "youngest," or "youth," to the plaintiff at or just before the firing, the employer loses summary judgment on the subsequent age-discrimination claim nearly every time.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

When Brian Bond texted his co-worker and former girlfriend, Gina Bullard, that she was a "whore" and later ignored two protective orders that Bullard had taken out against him, I wonder if he was thinking, "Maybe, I'll get fired and parlay that into a winning reverse-gender-discrimination claim."

Indeed, Mr. Bond's actions violated a number of work rules and, ultimately, resulted in his termination. But a winning reverse-gender-discrimination claim? Not so much according to the Third Circuit Court of Appeals (opinion here):

Bond has not demonstrated that the City refused to terminate similarly situated female employees, i.e., female employees that violated the City's violence in the workplace policy, sexual harassment policy, and code of ethics. As evidence of less favorable treatment, Bond submits that the City terminated him, but did not terminate Bullard.

Bullard used a City fax machine to file complaints against Bond and brought a handgun to work for protection -- against Bond. But I digress...

On its face, contends Bond, this disparity in treatment demonstrates that the City has discriminated on the basis of gender. However, Bond was subject to multiple protection from abuse orders, he admitted to sending text messages during work hours that were designed to annoy and alarm Bullard, and was charged with and ultimately pled guilty to harassment. As the District Court acknowledged, the record does not show that Bullard engaged in similar conduct.

Consequently, Bond could not demonstrate reverse-gender discrimination...even in bizarro world.

Usually, I end my blog posts by offering an employer takeaway. This time, I'll toss out an employee takeaway: Don't be like Bond.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.