Category: Civil Rights

Federal Courts Clarify Reasonable-Accommodation Standards

The National Law Review recently published an article, Federal Courts Clarify Reasonable-Accommodation Standards, written by Alan M. Koral and Andrea Lewis with Vedder Price:

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The extent of an employer’s duty to reasonably accommodate an employee with a disability under the Americans with Disabilities Act (ADA) is not always clear. Indeed, when the requested accommodation involves a leave of absence or the transfer to a different position, employers are often unsure what the law requires of them. A series of recent decisions from the Seventh and Tenth Circuits, however, have addressed the limitations and obligations facing employers presented with such requests for accommodation.

Leaves of Absence as a Reasonable Accommodation

Few questions vex employers more than what length of time is reasonable when a disabled employee requests a leave of absence. The United States Court of Appeals for the Tenth Circuit (Colorado, Kansas, Oklahoma), in Robert v. Board of County Commissioners of Brown County, 691 F. 3d 1211 (10th Cir. 2012), has shed some light on this issue that should help employers in deciding how to respond to employee leave requests under the ADA. The plaintiff, Ms. Robert, worked for Brown County supervising felony offenders. The essential functions of her job required that she perform many duties outside of her office such as performing drug screenings, ensuring compliance with court orders, testifying in court, and other “considerable fieldwork” including site visits under potentially dangerous circumstances. Robert was diagnosed with sacroiliac joint dysfunction, and because of severe pain in her back and hips eventually she could work only from home. Thus, she was unable to visit offenders, supervise drug and alcohol screenings or testify in court.

Following a surgery to treat her joint dysfunction, Robert exhausted her FMLA and sick and vacation leaves, but she still could not return to work. Neither she nor her doctor informed her employer as to when she could resume her job duties. Since she could not perform her job duties, the County terminated Robert’s employment. Among other claims, Robert alleged that her termination constituted discrimination under the ADA. The court disagreed. The court accepted that site visits and other out-of-office work were essential functions of Robert’s employment, but it stated that she would still be qualified to perform her job if she could have performed those duties with reasonable accommodation. The only possible reasonable accommodation in this case, however, would have been a leave of absence.

The court noted that there are two limits on the bounds of reasonableness for a leave of absence: (1) the employee must provide the employer an estimated date for when she can resume her essential duties, and (2) the leave request must assure the employer that the employee can perform the essential functions of her position in the “near future.” Though the court did not define “near future,” it cited to a case stating that a six-month leave request was too long to constitute reasonable accommodation. Here, Robert never provided any estimate as to when she could resume her fieldwork. Therefore, the only accommodation that would have allowed Robert to perform the essential functions of her position was an improper indefinite reprieve from her fieldwork functions. Thus, since Robert was not qualified to perform her duties, her discrimination claim failed.

Transfers to a Different Position as a Reasonable Accommodation

On September 7, 2012, the Seventh Circuit in EEOC v. United Airlines overruled two of its prior decisions (EEOC v. Humiston-Keeling (2000) and Mays v. Principi (2002) that together stood for the principle that employers could hire the most qualified applicant for a position, even if that meant passing over a disabled employee seeking the position because his disability precluded him from performing the essential functions of his current position. Going forward, employers in the Seventh Circuit will now be required to offer that vacant position to the disabled employee, unless it can show that doing so creates an undue hardship that renders mandatory reassignment unreasonable.

The dispute in United Airlines centered around a set of “reasonable accommodation” guidelines that the company used when evaluating transfer requests involving disabled employees. United’s guidelines provided that the transfer process was a competitive one, and that employees requesting a transfer as an accommodation would not automatically be placed into qualifying vacant positions. Instead, the disabled employee would receive preferential treatment, which included a “guaranteed” interview for the position and priority over similarly qualified applicants. Under these guidelines, however, a non-disabled applicant would receive the job if he or she was more qualified than a disabled employee seeking the accommodation.

In abandoning the standard it had followed since 2000, the Seventh Circuit concluded that the “ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” While the existence of a seniority rule mandated by a collective bargaining agreement will likely satisfy the undue-hardship requirement, not all such provisions are created equal, and their language should be parsed before rejecting a transfer request out of hand in such a setting. In the future, employers in the Seventh (and Tenth or Washington, DC) Circuits may no longer rely on a “best applicant” policy when making decisions about transferring disabled employees to vacant positions.

The Employee’s Role in Requesting a Reasonable Accommodation

In yet another noteworthy decision, the Seventh Circuit held that a university was not liable for failing to accommodate a professor’s mental disorder, where the university reasonably tried to fulfill a request for office reassignment but the employee did not cooperate. In Hoppe v. Lewis University, 692 F.3d 833 (7th Cir. 2012), Elizabeth Hoppe requested that her office be relocated to accommodate her adjustment disorder. Both the initial letter that Hoppe presented from her doctor and a follow-up letter failed to specify a suitable campus location for Hoppe or the particular stressors that necessitated Hoppe’s relocation. Nevertheless, the university offered Hoppe four different office options, one of which she accepted but never used; she refused the remaining offices because they were in the same building as individuals whom she alleged heightened her anxiety, but her physician never specified a change of buildings or any location information at all. The court emphasized:

An employer can take no solace in its failure to engage in this process in good faith if what results is an unreasonable or inappropriate accommodation offer. And an employee who fails to uphold her end of the bargain – for example, by not “clarifying the extent of her medical restrictions” – cannot impose liability on the employer for its failure to provide a reasonable accommodation.[1]

In finding in favor of the university, the Seventh Circuit noted that the university offered Hoppe several options to change offices, despite having no specific details from her doctor about what steps were necessary to reasonably accommodate her disability. Further, the university had asked Hoppe’s doctor for specific information several times, to no avail. Therefore, the university did its part to participate in good faith in the ADA-required interactive process, and there was no evidence it did not offer Hoppe a reasonable accommodation.

Lessons for Employers

First, these cases emphasize that an employer need not shoulder the entire burden when trying to reasonably accommodate an employee with a disability; the employee has responsibilities as well. As noted in Hoppe, an employer need not offer an employee the precise accommodation he or she requests, if the employee does not clarify the extent of his or her medical restrictions. The employer must participate in good faith in an interactive process under the ADA to find a reasonable accommodation, but the employer’s obligation runs only so far. If an employee’s physician does not specify the employee’s restrictions or what type of accommodation is necessary, following up with the physician and working with the employee to find alternative options should protect an employer from liability if the employee later argues that the offered accommodations were unreasonable.

Second, an employer is not required to provide an open-ended leave of absence if an employee requests such an absence as an accommodation. Under Robert’sanalysis, an indefinite absence, especially when there is no assurance that the employee will be able to perform the essential functions of his or her position, is unreasonable as a matter of law. Under these circumstances, once an employee has exhausted other types of leave, if she cannot provide an estimate of when she can resume the essential duties of her position, a court is likely to uphold an employer’s decision to terminate her. The employee does not need to return to work at full capacity, but the employee must be able to perform the duties of her position with reasonable accommodation under the ADA.

Third, employers in the Seventh Circuit must now reassign qualified disabled employees who can no longer perform their original jobs to vacant positions, unless the employer can establish the existence of special circumstances that demonstrate undue hardship. While the seniority provisions of a collective bargaining agreement should satisfy this requirement, it remains to be seen what other special circumstances will suffice going forward. Employers should vigorously explore the possibility of reassignment with disabled employees and be sure that any positions discussed with and/or offered to the employee are documented.

Finally, these cases further emphasize the importance of detailed job descriptions. With or without accommodation, an employee must be able to perform the essential functions of his or her job. If the employer can pinpoint the essential functions of a job, both the employer and the employee will have an easier time engaging in the required interactive process for establishing reasonable accommodations. Further, in the event an employee cannot perform the essential functions of a job, an employer is further protected in a lawsuit if it has articulated the essential functions of a position ahead of time.If you have any questions about this article or the ADA in general, please contact Alan Koral at +1 (212) 407 7750, Andrea Lewis at +1 (312) 609 7739, or any other Vedder Price attorney with whom you have worked.

[1]   Id. at 840 (citations omitted)

© 2012 Vedder Price

After Nearly 25 Years, New Jersey Appellate Court Provides ‘Sobering’ Guidance to Employers Respecting Workplace Alcoholism

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It has been almost 25 years since a New Jersey appellate court published a decision providing any meaningful analysis of the treatment of alcoholism in the workplace under the State’s Law Against Discrimination (LAD), the last time being the Supreme Court’s 1988 decision in Clowes v. Terminix International, Inc.

That has now changed.

On October 26, 2012, the Appellate Division held in A.D.P. v. ExxonMobil Research & Engineering Co. that a private-sector, non-union employer’s blanket policy requiring any employee returning from an alcohol rehabilitation program to submit to random alcohol testing, applicable only to those identified as being “alcoholic” and divorced from any individualized assessment of the employee’s performance, was facially discriminatory under the LAD — a conclusion that would likely be the same under the federal Americans with Disabilities Act (ADA) as well. Although the Court reversed summary judgment initially entered in favor of the employer, A.D.P. provides valuable guidance to employers as they develop their policies concerning how best to deal with alcohol (and substance) abuse in the workplace. Equally important,  A.D.P. illustrates the utility of so-called “last chance agreements” to address these issues when they arise.

Plaintiff in  A.D.P. had been employed as a research technician, and later Senior Research Associate, for approximately 30 years.  Unlike the plaintiff in the Supreme Court’s 1992 decision in Hennessey v. Coastal Eagle Point Oil Co., hers was not a “safety-sensitive” position. In 2007, plaintiff voluntarily disclosed to her employer that she suffered from alcoholism, and entered a rehabilitation program. At the time, she was not subject to any pending or threatened disciplinary action, and she had built a good performance record over the years. The company’s policy nonetheless required that, upon her return from rehabilitation, plaintiff sign a contract agreeing to participate in a company-approved “aftercare program” obligating her to “maintain total abstinence from alcohol” and submit to “clinical substance testing for a minimum of two (2) years.” A positive test result or refusal to submit to a test would be deemed grounds for discipline, “which is most likely to be termination of employment.” Although plaintiff passed nine breathalyzer tests over a period of just 10 months, she subsequently failed a pair of tests on August 22, 2008, and accordingly was terminated under the company’s policy.

Reversing summary judgment, the Appellate Division held that the employer’s blanket policy was facially discriminatory because it was unrelated to any performance concerns and was based solely on the  fact that an employee was identified (in plaintiff’s case, self-identified) as an alcoholic (i.e., the employer, according to the court, exhibited “hostility toward members of the employee’s class”). Unlike the Supreme Court in  Hennessey, which considered  whether an employer’s termination of an employee who failed a mandatory random drug test violated a clear mandate of “public policy” thereby creating a common law cause of action for wrongful discharge, the A.D.P. Court grounded its analysis of the defendant’s alcohol policy on LAD.

Notably, the A.D.P. Court looked to the EEOC’s 2000 policy guidance under the ADA, even though the EEOC had not yet considered the potential impact of the 2008 ADA Amendments Act upon that guidance. The EEOC explains that, absent a “last chance” agreement, an employer can subject employees returning from alcohol rehabilitation to random alcohol testing, a breathalyzer for example, only if the employer has a reasonable belief, based on objective evidence, that the employee will pose a “direct threat” (for example, to safety or job performance) absent such testing. Any such “reasonable belief” must be based on an individualized assessment of the employee and his/her position, including “safety risks associated with the position,” and not on generalized assumptions. The A.D.P. Court looked to this guidance statement for “assistance in interpreting the LAD” because the ADA’s prohibition against disability discrimination is “similar” to its LAD counterpart, and alcoholism may qualify as a disability under either statute.

In A.D.P., plaintiff did not have a last chance agreement, a fact the court “emphasize[d]” at the outset. The court also stressed that the employer had made no individualized assessment, but rather “defend[ed] its actions as requirements it uniformly imposed as a matter of policy upon any identified alcoholic.” Interestingly, the A.D.P. Court did not mention the Third Circuit’s unpublished 2009 decision inByrd v. Federal Express Corp. Byrd upheld an employer’s termination of a self-reported alcoholic employee for failing a random alcohol test mandated under a “Statement of Understanding” (SOU) — a contract the Third Circuit described as “in effect, a ‘last chance’ agreement” — that the employer required all employees identified as alcoholics to sign.  Byrd did not, however, consider plaintiff’s claim that requiring the SOU was itself a violation of LAD “because it treats employees with alcohol or substance abuse problems differently,” as plaintiff had failed to challenge the SOU within LAD’s statutory limitations period.

Although  A.D.P. invalidated the particular policy before it, in its opinion, the Court nonetheless provides employers with valuable guidance in developing their own policies concerning alcohol and substance abuse in the workplace. It seems clear under A.D.P. that private, non-union employers can require employees returning from rehabilitation programs for alcoholism to submit to random alcohol or drug testing (subject to the limits imposed by the Supreme Court in Hennessey) provided that either (i) they articulate a reasonable belief, based on careful assessment of objective evidence concerning both the employee and the position, that the employee will pose a direct threat absent such testing, or (ii) the employee has entered into a last chance agreement providing for random testing.

Key Takeaways

  • Employers should strongly consider entering into last chance agreements with any employee who points to alcohol or substance dependency as a cause for workplace problems (for example, poor performance or persistent tardiness), and include in the agreement requirements that, as a condition of continued employment, the employee will enter a rehabilitation program and submit to periodic testing.
  • Absent a last chance agreement, employers should not compel an employee to submit to periodic alcohol testing unless the employer can articulate a reasonable belief, based on a careful assessment of objective evidence concerning both the employee and the nature of his/her position, that the subject employee will pose a direct threat without testing.
  • Employers are cautioned against instituting blanket workplace alcohol (or substance) policies that specifically target employees returning from rehabilitation without regard to safety or performance issues.

©2012 Greenberg Traurig, LLP

Sixth Circuit Strikes Down Michigan Affirmative Ban As Unconstitutional

The National Law Review recently published an article by Bryan R. Walters of Varnum LLP regarding Michigan’s Affirmative Action Ban:

Varnum LLP

 

In Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) v Regents of the University of Michigan (6th. Cir. Nov. 16, 2012), the United States Court of Appeals for the Sixth Circuit, in an en banc decision decided on an 8-7 basis, held that the provision in Michigan’s Constitution prohibiting public colleges and universities from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin (commonly known as “Proposal 2”) was unconstitutional.

The majority was careful to note that the Court was “neither required nor inclined to weigh in on the constitutional status or relative merits of a race-conscious admissions policy as such.  This case does not present us with a second bite at Gratz and Grutter – despite the best efforts of the dissenters to take one anyway.”  Id. at 9.  Rather, the Court framed the issue as follows:  “The sole issue before us is whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions – something they are specifically allowed to do under Grutter.” Id.

The Court concluded that when an enactment (1) has a racial focus and “inures primarily to the benefit of the minority” and (2) reallocates political power in a way that places special burdens on a minority group’s ability to achieve its goals, that enactment violates the Equal Protection Clause of the constitution absent a compelling state interest to the contrary.  Id. at 15.  The Court held that Proposal 2 inured primarily to the benefit of racial minorities and that its enactment placed special burdens on racial minorities’ access to public education.  Id. at 18, 27.

Several of the dissenting judges wrote separate opinions voicing the reasons for their dissent.  In general, the dissents echo a similar theme – that Proposal 2’s mandate of non-discrimination in public education cannot be a violation of the Equal Protection Clause.  One dissent noted that the majority’s opinion was out of step with the decision by the United States Court of Appeals for the Ninth Circuit in Wilson (which is generally regarded as the most “liberal” circuit court of appeals) that “impediments to preferential treatment do not deny equal protection.”  Id. at 47.  Another dissent described thwae majority opinion as “the antithesis of the Equal Protection Clause of the Fourteenth Amendment.”  Id. at 70.  Given the obvious circuit split created between this decision and the Ninth Circuit’s decision in Wilson, it seems very likely that the issue will ultimately be decided by the United States Supreme Court.  Stay tuned.

© 2012 Varnum LLP

Social Media: The New Harassment Landscape Continued

A recent government study uncovered that 23% of harassment victims were targeted through text messaging, email or other digital forms. Not so long ago, the only evidence human resources had to investigate in harassment claims were the face-to-face comments of the parties involved, making the truth sometimes difficult to determine.  With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and “he said, she said” testimony, because nothing can refute written proof.

Even though there are pitfalls in allowing employees to use social media in the workplace, there are also very positive effects. Giving employees the ability to interact via social media keeps morale high, and can be a platform for work related resources. The marketing benefits of social media connections alone can outweigh the risks. The main objective of a social media policy should not be to ban social media usage on the job, but to protect itself through clear and concise social media policies.  For example, a company’s anti-harassment policy should include social media and clearly state that derogatory comments about co-workers are prohibited  and should be reported. Employers should offer training, not only to managers and supervisors, but to all employees about what is appropriate for online postings, and what is not.  Perhaps most importantly, as illustrated in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), employers have an obligation to investigate complaints and reports of suspect social media abuse just as it would with traditional harassment claims.

Crafting social media policies can be tricky business. Finding the right balance between being overly broad and infringing on worker’s rights is a struggle. Recently the National Labor Relations Board (NLRB) found that social media policy of Costco Wholesale Corporation violated Section 7 of the National Labor Relations Act because it too broadly limited employees’ on-line comments and conduct.  Complete restriction is not the path to fairness and protection. Rather finding a balance in a carefully worded policy that provides examples and avenues for employees to safely report any suspect activity.

The laws concerning harassment, especially online, are complex due to the intersection of longstanding legal principles and with technological proliferation. The best course of action in a harassment claim will vary greatly depending on the circumstances of the case.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

EEOC Releases Q&A Fact Sheet On Application of Title VII and ADA to Victims of Domestic Violence, Sexual Assault, and Stalking

Recently, The National Law Review published an article by R. Holtzman Hedrick of Barnes & Thornburg LLP regarding Domestic Violence Victims:

 

The Equal Employment Opportunity Commission’s (EEOC) most recent official guidance involves the application of federal anti-discrimination laws to employees and applicants who have experienced domestic or dating violence, sexual assault, or stalking. The Q&A Sheet can be found here. 

Because victims of these offenses are not explicitly protected under federal law, employers may not realize certain employment decisions can run afoul of Title VII (prohibits discrimination on the basis of sex and sex stereotyping, among other categories) or the Americans with Disabilities Act (ADA).  Examples that might lead to charges of discrimination under Title VII include:

  • Terminating an employee after learning she has been the subject of domestic violence because the employer fears the possible “drama battered women bring to the workplace.”
  • Failing to select a male applicant after learning applicant obtained a restraining order against his male domestic partner because hiring manager believes men can’t be victims of domestic violence and should be able to protect themselves.
  • Allowing males a leave of absence to appear in court for the prosecution of an assault, but denying females leave to testify in domestic violence case.  Employer believes the former to be a “real crime” while the latter is “just a marital problem.”

The ADA prohibits discrimination based on actual or perceived impairments, and one can easily foresee situations when domestic/dating violence or sexual assault can result in such impairments.  Examples where employers may be found liable for unlawful disability discrimination under such circumstances include:

  • Deciding not to hire applicant employer discovers is the complaining witness in a rape prosecution and has seen a therapist for depression because employer believes applicant may need time off in the future to deal with symptoms or for counseling sessions.
  • Failing to address and stop harassment by co-workers regarding employee with facial scars/skin grafts resulting from attack by former domestic partner.
  • Failing to accommodate an employee not eligible for FMLA leave by refusing to give her time off to seek treatment for depression and anxiety following a sexual assault.  The employer tries to justify the refusal by stating that leave and attendance are uniformly applied to all employees.
  • Failing to honor an employee’s request for reassignment to available vacant position at different location for which she is qualified when ex-boyfriend who currently works in the same building is stalking her, causing her major depression.  Employer cites “no transfer” policy as reason for refusal.
  • (Supervisor) disclosing to other co-workers an employee’s post-traumatic stress disorder resulting from incest.

Although these are the examples given by the EEOC, indirect discrimination allegations under Title VII and the ADA can arise in numerous situations that would not necessarily be readily apparent to even well-trained and sophisticated employers. Of course, it is always a good idea to seek guidance from experienced employment counsel when employers are given pause about an employment decision, even when the employer is not entirely sure why they might be hesitating.

© 2012 BARNES & THORNBURG LLP

EEOC Continues Focus on Religious and National Origin Discrimination Involving Muslim and Arab Communities

The National Law Review recently published an article by Robert B. Meyer and David L. Woodard of Poyner Spruill LLP, regarding Discrimination:

 

The U.S. Equal Employment Opportunity Commission has announced on its website that it continues to focus on what it considers to be ongoing religious and national origin discrimination in the workplace, especially against Muslim, Sikh, Arab, Middle Eastern, and South Asian Communities.  The EEOC reports that in the initial months after the September 11, 2001 terrorist attacks, the Commission saw a 250% increase in the number of religion-based charges involving Muslims.  Since that time, the EEOC states that it has continued to track an increase in such charges, as well as those alleging national origin discrimination against those with Middle Eastern background.  While the Commission does not specify how many of those charges were found to have merit, it does report that it has filed nearly 90 lawsuits against employers, many of which involve alleged harassment on the basis of religion and national origin.  Thus, it is apparent that the EEOC is aggressively pursuing investigation and enforcement activities in this area.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees or job applicants on the basis of religion or national origin.  The harassment of individuals because of their religion or national origin is also prohibited.  Through its interpretations of Title VII, The EEOC has recognized a wide range of actions and conduct that may be potentially unlawful, including: disparate treatment, teasing or insults because of a person’s appearance, customs, language, or accent; requiring employees to speak English in the workplace; disparate treatment, jokes, or insults toward an employee because of the national origin or religion of that person’s spouse; and adverse actions based on perceptions of an employee or applicant’s national origin or religion.

It is important to note that in addition to these prohibitions against discrimination and harassment, Title VII also requires employers to reasonably accommodate the religious practices of an employee or applicant, unless doing so would cause an “undue hardship” for the employer.  The EEOC has suggested that reasonable accommodation may include, for example, providing employees with leave to attend religious observances, providing time and/or a place to pray, and permitting employees to wear religious attire in the workplace.  However, the issue of accommodation requires the employer to consider each request for accommodation on a case-by-case basis in order to determine whether accommodation is possible and reasonable under the circumstances.

The EEOC also states that it has “intensified its outreach” to educate employees in this area of the law by issuing fact sheets on immigrant employee rights, employment discrimination based on religion and national origin, and employer responsibilities under Title VII with respect to the employment of Muslims, Arabs, South Asians, and Sikhs.  These fact sheets provide specific examples of prohibited conduct in the workplace, and also offer instructions on how employees may file charges with the EEOC.  Therefore, and in view of the EEOC’s emphasis on this particular form of discrimination, employers should review carefully these fact sheets as a part of their proactive compliance and training measures.  Employers should also remember that retaliation against anyone who files a charge or otherwise opposes unlawful discrimination is expressly prohibited under Title VII.

© 2012 Poyner Spruill LLP

NLRB Strikes Down Employee Handbook Language and Issues First Social Media Decision

The National Law Review recently published an article by Doreen S. Davis, Jonathan C. Fritts, Ross H. Friedman, and David R. Broderdorf of Morgan, Lewis & Bockius LLP regarding the NLRB and Social Media:

 

Continuing its aggressive foray into nonunion workplaces, the NLRB has weighed in on social media and employee handbook issues, finding certain language to be unlawful under Section 8(a)(1) of the National Labor Relations Act.

In September, the National Labor Relations Board (NLRB or Board) issued two decisions confirming that it will now use Section 8(a)(1) of the National Labor Relations Act (NLRA or Act) to find basic (and widespread) handbook and policy language to be unlawful even when it does not involve protected activity under Section 7 of the NLRA. In Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012),[1] the Board reviewed a variety of handbook provisions protecting certain confidential information and found them unlawful under the Act. The Board’s more recent decision in Knauz BMW, 358 N.L.R.B. No. 164 (Sept. 28, 2012),[2] built on the Costco decision and deemed that a rule requiring workplace courtesy violated Section 8(a)(1). The Knauz case is the Board’s first decision in a case involving posts to the social media website Facebook. Given the Board’s expansive interpretation of Section 8(a)(1), it is likely that one or both of these decisions could face appellate court scrutiny in the near future.

Costco Wholesale Case

In its Costco decision, issued on September 7, the Board found that the following policy language was unlawful under Section 8(a)(1) of the NLRA:

  • Prohibiting “unauthorized posting, distribution, removal or alteration of any material on Company property.”
  • Discussing “private matters of members and other employees . . . includ[ing] topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”
  • Disseminating “[s]ensitive information such as membership, payroll, confidential financial, credit card numbers, social security numbers, or employee personal health information.” The policy stated that such information “may not be shared, transmitted, or stored for personal or public use without prior management approval.”
  • Sharing “confidential” information, such as employees’ names, addresses, telephone numbers, and email addresses.
  • Electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation.”

The Board’s decision confirms that even basic policy language common in nonunion workplaces will be struck down if there is a reference to one “inappropriate” item. In this case, a reference to “payroll” information (as in the third bullet above) rendered an entire section unlawful. As a result, employers should carefully review their employee handbooks to avoid an adverse finding by the NLRB.

Knauz Case

Knauz—issued on September 28, three weeks after Costco—involved a nonunion car dealership with a handbook provision stating that

[c]ourtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The Board majority found this rule unlawful under Section 8(a)(1) of the NLRA because employees would reasonably view the prohibition against “disrespectful” conduct and the “language which injures the image or reputation of the Dealership” to encompass Section 7 activity. Employees who wished to avoid discipline, according to the majority, would mind this rule in the context of disputes related to wages, hours, or terms and conditions of employment and therefore would be inhibited in exercising NLRA rights. It also is noteworthy that the Board upheld, in a footnote, the administrative law judge’s (ALJ’s) dismissal of the allegation that the dealership fired an employee based on his Facebook postings about an automobile accident at one dealership. These Facebook postings were deemed unprotected under Section 7. The judge had reasoned that the employee posted the information apparently “as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment.”

The one Republican NLRB member, Brian Hayes—who was not on the panel for theCostco case—issued a dissenting opinion on Knauz. Member Hayes discussed the Board’s overreach in applying Section 8(a)(1) and cited a great deal of precedent in support. He also signaled that the appellate courts likely would pare back the Board’s recent expansion into the world of employee handbooks and social media policies. Specifically, Member Hayes cited case law holding that the Board must not review policy language in isolation or come up with a theory whereby employees “conceivably could construe [language] to prohibit protected activity,” as opposed to whether they “reasonably would do so.” Member Hayes pointedly argued that the majority’s “analysis instead represents the views of the Acting General Counsel and Board members whose post hoc deconstruction of such rules turns on their own labor relations ‘expertise.'”

Conclusion

While the Acting General Counsel’s view and the views of some ALJs on these issues have been widely publicized, the decisions in Costco and Knauz provide the first look at the Board’s majority view. The law is changing, and handbook language should be reviewed to determine if the language “could be” read to restrict Section 7 activity, even with a strained interpretation. The Acting General Counsel will continue to prosecute these types of cases against nonunion employers, which constitute 93% of all private sector workplaces. While many employers have already reviewed their policy language based on the legal developments in this area over the past several years, as developed by the Acting General Counsel’s three guidance memoranda, the Costco and Knauz decisions provide another opportunity to review policy language in order to minimize the risk of a violation. Notably, unions have and will continue to use handbook policies to threaten and file unfair labor practice charges against an employer at strategic times—including organizing campaigns and collective bargaining negotiations.

[1]. Read the Costco decision at here.

[2]. Read the Knauz decision here.

Copyright © 2012 by Morgan, Lewis & Bockius LLP

Seventh Circuit Reverses Course on Reassignment Accommodation, Leaving United Airlines Grounded

An article by R. Holtzman Hedrick of Barnes & Thornburg LLP regarding Reassignment Accommodations, recently appeared in The National Law Review:

 

In arguably its most significant decision under the Americans with Disabilities Act (ADA) in years, the Seventh Circuit, in EEOC v. United Airlines, Inc., reversed its own previous holdings regarding the viability of competitive transfer policies for disabled employees. The case can be found here.

For over a decade, employers in the Seventh Circuit have been able to rely onEEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), to adopt perfectly valid policies allowing for disabled employees who can no longer perform the essential functions of their current jobs to be considered for reassignment on a competitive basis.  In other words, if a more qualified candidate sought the same position as the disabled candidate, the employer could select the best-qualified candidate without running afoul of the ADA.  No longer, says the Seventh Circuit.

The circuit court held that under the Supreme Court precedent of U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (requiring an employee to show that an accommodation is reasonable on its face, which then shifts the burden to the employers to demonstrate case-specific undue hardship), reassignment of a disabled but qualified employee to a vacant position is mandatory in the absence of an undue hardship.  Despite reaffirming its best-qualified candidate rule even after Barnett was decided (reasoning that that ADA does not require preferential treatment and that violating facially-neutral employment policies creates an undue hardship), the Seventh Circuit decided last week that it had been wrong all along:  the “ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”

The importance of this new automatic reassignment interpretation cannot be overstated.  Indeed, questions about an employer’s reassignment obligations are among the most frequently received inquiries by attorneys under the ADA.  United Airlines, whose policy in question provided for preferential treatment of disabled employees, although not for automatic reassignment for those who were qualified – meaning the company actually went beyond what the Seventh Circuit required it to do before last week – must feel blindsided by the court.  Indeed, this Seventh Circuit panel issued an earlier version of an opinion in this case dismissing the lawsuit under Humiston-Keeling before vacating that decision and issuing a new opinion.

Obviously, employers in the Seventh Circuit (and likely beyond, as the D.C. and Tenth Circuits provide for automatic reassignment, and the Eighth Circuit relied onHumiston-Keeling in deciding that competitive transfer policies were legal) will need to adjust their reassignment policies for disabled employees.  In light of this new ruling, it is critical to consult with experienced counsel to navigate what is likely uncharted territory.

© 2012 BARNES & THORNBURG LLP

Smartphones – 24/7 Access: When are employees off the clock?

The National Law Review recently published an article by Cynthia L. Effinger of McBrayer, McGinnis, Leslie and Kirkland, PLLC regarding Smartphones and Employees:

With instant access to all things via smartphones and the internet, it has become increasingly easy for employees and employers to stay connected to work all the time. Smartphone access and being constantly connected is part of our professional make-up, and necessary to keep pace with the speed of the information highway. Right? Connectivity is firmly woven into everyday business practices but at what price?

If your company issues smartphones or similar devices to all or some of its employees so they can stay in touch, checking emails or responding to phone calls after-hours or on the weekends; your company could be at risk for ‘off-the-clock’ lawsuits.  The Fair Labor Standards Act (“FLSA”) requires employers to compensate non-exempt employees overtime pay for any time worked beyond a 40-hour workweek. Exempt employees (so long as they are classified correctly), are the exception. Under FLSA failure to pay an employee wages and overtime due will result in serious fines, and is a growing area of class action law suits.

Being smart about smartphones usage by employees is crucial. It is essential to have a clear electronic-use policy that outlines specific guidelines explaining work hours and use of any such device (laptops, tablets and phones). As an employer you are financially responsible for work hours that are requested and voluntary. Which means if a non-exempt employee is using a smartphone (company issued or personal) outside of work hours, for work purposes – even when not required or requested – the company is responsible for overtime pay to that employee for the hours worked. So, an electronic use policy needs to be very specific about what is permitted and what is prohibited.

Of course it is not enough to have a policy in place, it must be enforced. To enforce such a policy that applies to work performed after-hours and off-premises, the employer must institute a strong system of reporting and monitoring the activity. This could include a specific time-recording tool, as well as an essential versus non-essential activity list, which could temper an employee’s overtime.

There is a “de minimus” rule, which has been adopted in several federal court proceedings that classifies minimal time spent checking or replying to emails or texts as not compensable.  However, if the employee tracks and presents the aggregate of these de minimus actions, the time often becomes comprehensive enough for an overtime claim.

Having the correct system and policy in place to control smartphone usage is no longer an afterthought; it is an essential element of employment and a critical policy. Smartphones have changed the way we work, and as in many areas of business, technology surpasses our ability to keep up with the changes it creates. If you don’t have an electronic-use policy in place, we recommend you make it priority number one for the HR Department. Have it reviewed by an attorney, educate your staff and enforce its rights and restrictions.

© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

New York Enhances Employee and Consumer Privacy Rights Under its Social Security Number Protection Law

Four years ago, New York enacted a Social Security Number Protection Law, N.Y. Gen. Bus. Law, §399-dd, aimed at combating identity theft by requiring employers to better safeguard employee social security numbers in their possession.  (Click here for our summary of the law).  Now, New York is going one step further with its passage of two new Social Security Number Protection laws.

First a note: as of November 12, 2012, §399-dd – the original Social Security Protection Law – will be re-codified as new §399-ddd, and it will also add the statutory language of the first of these two new laws, which prohibits employers from hiring inmates for any job that would provide them with access to social security numbers of other individuals.

The second law, which is codified as a separate new §399-ddd, enhances the requirements for safeguarding employee social security number while also adding similar protections for consumers.  This law prohibits companies from requiring employees and consumers to disclose their social security numbers or to refuse any service, privilege or right to the employee or customer for refusing to make that disclosure, unless (i) required by law, (ii) subject to one of its many exceptions, or (iii) encrypted by the employer.  This law also applies to any numbers derived from the individual’s social security number, which means that it extends, for example, to situations where the company asks the individual for the last four digits of their number.  It is unclear whether this law will prove effective in accomplishing its objectives.

First, it contains an exception with the potential to swallow the rule – where the individual consents to the use of the social security number, which many individuals may freely provide absent knowledge of this law’s protections.  Even with an employee’s consent, however, employers must still be mindful that other provisions of the original Social Security Number Protection Law requires them to institute certain safeguards to protect against the number’s disclosure.  And further, even if the employer obtains the employee’s consent, the original law still prohibits employers from utilizing an employee’s social security account number on any card or tag required for the individual to access products, services or benefits provided by the employer.

Second, the penalties for violations are minimal – up to $500 for the first violation and $1,000 for each violation thereafter, and can be avoided where the employer shows the violation was unintentional and occurred notwithstanding the existence of procedures designed to avoid such violations.  Further, there is no private right of action, and only the Attorney General can enforce the law.

Governor Cuomo signed the acts into law on August 14, 2012.  The inmate law will take effect on November 12, 2012 and the disclosure law will take effect thirty days later on December 12, 2012.  Now if he would only sign the recently passed wage deduction law.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.