Category: Labor & Employment

Top Ten Employment Law Issues for 2013

The National Law Review recently featured an article, Top Ten Employment Law Issues for 2013, written by the Employment & Labor Practice of Armstrong Teasdale:

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With calendar year 2012 as a guide, 2013 is already on its way to being another year of employee friendly mandates, legislation, and court decisions. By keeping this Top 10 list of employment issues in mind, you can minimize legal risks and maximize chances of successfully dealing with employment law challenges in this New Year:

  1. Review your employee handbooks including the “at-will” language. Small changes may go a long way in warding off the National Labor Relations Board’s (“NLRB”) recent aggressive challenges to long-standing at-will language in employee handbooks and personnel policies.
  2. Don’t assume your social media policy is compliant unless it has been updated in the last six months. 2012 was the year of active gutting of even the most sensible of social media policies by the NLRB.
  3. Review and update your criminal background check procedure. The EEOC is aggressively pursuing compliance with its 2012 guidance on when a conviction can disqualify an applicant from employment and when you can consider arrest records.
  4. Keep in mind that you are only as effective as your supervisors. Continue to train your employees on recognizing and avoiding sexual and other harassment and discriminatory behavior. Ensure your supervisors are responding appropriately to observed harassment and complaints of discrimination. Don’t forget that retaliation charges are now the most common claims filed with the EEOC.
  5. Review and update your non-compete, non-solicit and confidentiality agreements. Recent court decisions reconfirm that the enforceability of non-compete agreements against departing employees depends upon the facts and circumstances of each situation and the specific terms of your agreements.
  6. Review your exit interview procedures. There is no better time to learn information that may help you minimize future claims. This is also the best time to remind employees of their confidentiality, non-solicit and non-compete obligations in order to protect your organization before any damage is done. Call or e-mail us for a copy of our handy exit interview checklist.
  7. Conduct an audit of your organization’s compliance with wage and hour laws. Off-the-clock wage and hour lawsuits alleging employees are being misclassified as exempt or as independent contractors are still on top of the administration’s and plaintiff class action lawyers’ agendas.
  8. If you are a potential target for unionization, review your company policies and practices to ensure that you are well-prepared before NLRB’s speedy election and other pro-union rules make it too late.
  9. Review your attendance and leave (including FMLA leave) policies and procedures. The EEOC, DOL and plaintiffs’ lawyers are vigorously pursuing ADA and FMLA failure to accommodate and failure to grant leave lawsuits.
  10. If your organization is a government contractor, get ready for big changes. OFCCP continues its focus on enforcement including trying to find unlawful compensation disparities and is even considering setting quotas for hiring disabled workers.

© Copyright 2013 Armstrong Teasdale LLP

Our Top 10 Labor Law Events of 2012

The National Law Review recently published an article by Gerald F. Lutkus with Barnes & Thornburg LLP titled, Our Top 10 Labor Law Events of 2012:

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The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to “engage in concerted action for mutual aid or protection.” The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

 

You can read our previous coverage of D.R. Horton by clicking on the following links:

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a “quickie” or “ambush” election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB’s relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to “gut” Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned “Facebook firings”; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

© 2012 BARNES & THORNBURG LLP

New Year, New Laws for California Employers – Added Whistle-blower Protections, With Whom Will the EDD Share Employer Reports and Contracts with Commission Employees

The National Law Review recently published an article by Mark E. Terman of Drinker Biddle & Reath LLP regarding New Laws for California Employers:

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Continuing with our series “New Year, New Laws for California Employers,” we take a look at newly added whistle-blower protections, with whom the EDD will share employer reports and contracts with commission employees.  Prepared by  Mark Terman, partner in the Los Angeles office, this series looks at some of the significant new regulations becoming law in 2013 affecting private employers doing business in California.

Added Whistle-blower Protections

The California False Claims Act prohibits submission to the government of a false claim for money, property or services, and authorizes actions for treble damages and penalties. An example could be charging a government entity for goods or services that were not provided.

Employees, as “relators,” can inform the government or law enforcement, participate in these actions after satisfying certain requirements and share in the recovery.  Employers cannot prevent employees from disclosing information to the government or law enforcement agency, or from acting in furtherance of a false claims action.  There are similar statutes under federal law.

AB 2492 provides that contractors and agents can also be whistle-blowers under Cal-FCA.  The new law also makes clear that retaliation for trying to prevent a false claim is prohibited, and that relief in a whistleblower or “Qui Tam” action can include reinstatement, double back-pay, interest on the back pay, special damages, punitive damages and attorneys’ fees.

With Whom Will the EDD Share Employer Reports?

Existing law requires employers to provide employee wage information, new employee information and new independent contractor information to the Employment Development Department for use in the administration of tax and unemployment insurance.

We are entering an era of enhanced information sharing designed to make government agencies more effective in enforcing tax and other laws, including billions of dollars that state agencies believe are lost in tax revenue due to improper classification of independent contractors. AB 1794 now permits the EDD to share employer and employee information with the Joint Enforcement Strike Force on the Underground Economy for the purposes of auditing, investigating and prosecuting violations of tax and cash-pay reporting laws and other agencies.

The strike force includes the EDD; Department of Industrial Relations, Division of Labor Standards Enforcement and Division of Occupational Safety and Health; Contractors’ State License Board; Department of Insurance, State Compensation Insurance Fund; and Department of Justice (see www.edd.ca.gov/payroll_taxes).  Information sharing is also permitted with the California Department of Health Care Services, the California Health Benefit Exchange, the Managed Risk Medical Insurance Board, county departments and agencies, the Agricultural Labor Relations Board, the Franchise Tax Board and the State Board of Equalization.

Contracts with Commission Employees

Enacted in 2011, Labor Code Sec. 2751 becomes effective Jan. 1, 2013.  It requires an employer, when entering into a contract of employment calling for commissions as a method of payment, to create a contract that must be in writing and that describes the method of computation and payment of commissions. The employer must give a signed copy of the contract to the employee and obtain a signed receipt for the contract from the employee. If the contract expires and the parties nevertheless continue to work under the terms of the expired contract, the contract terms are presumed to remain in full force and effect until the contract is superseded or employment is terminated by either party.

“Commissions” generally mean the same as in Labor Code Sec. 204.1: “Compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.”

Commissions do not include: short-term productivity bonuses (such as are paid to retail clerks) and bonus and profit-sharing plans— unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed. AB 2675 adds that temporary, variable incentive payments that increase commissions but do not decrease payment are not covered.

Read the rest of the series:

New Year, New Laws for California Employers – Employer Access to Social Media

New Year, New Laws for California Employers – Religious Dress and Grooming Protected and Breastfeeding Further Protected

©2012 Drinker Biddle & Reath LLP

2013 Notice to Employees Concerning the American Health Benefit Exchanges

Fowler White Boggs P.A.‘s Lawrence M. Ploucha, Barbara L. Sanchez-Salazar, and Kathy J. Tayon recently had an article, 2013 Notice to Employees Concerning the American Health Benefit Exchanges, featured in The National Law Review:

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Under the Patient Protection and Affordable Care Act of 2010 (“PPACA”) each state is required to establish an American Health Benefit Exchange (“Exchange”) that:

  • facilitates the purchase of qualified health plans;
  • provides for the establishment of a small business health program that is designed to assist qualified small employers in the state with facilitating the enrollment of their employees into qualified health plans offered in the small group market in their state; and
  • meets certain organizational and operational requirements.

Although the Exchanges are not set to come on line until January 1, 2014, employers have an obligation in 2013 to inform current employees and new hires of the availability of the Exchange, of the employees ability to shop for coverage and if eligible to obtain coverage from the Exchange.

The employers notice must be in writing and must be issued by the following deadlines:

  • Information to new hires: March 1st and
  • Information to current employees: March 13th

The notice should explain:

  • General information concerning the employers health plan,
  • The employee’s right to purchase health insurance coverage through a state Exchange;
  • The services provided by the Exchange;
  • How to contact the Exchange;
  • The employee’s possible eligibility for government subsidies under the Exchange if the employer’s share of the aggregate cost of benefits is less than 60%; and
  • The employee’s possible loss of an employer subsidy, if any, (in the form of a tax-free contribution to the employer-provided health coverage) if the employee purchases health insurance coverage through the Exchange.

PPACA guidance on the “aggregate cost of benefits” defines it as the aggregate cost of applicable employer-sponsored coverage. Thus the aggregate cost for an individual employee is the total cost of coverage under all applicable employer-sponsored health coverage provided to the individual employee. The amount reported may differ among a company’s employees depending on each employee’s specific election of coverage (i.e. PPO, HMO, single, family, etc.). The cost of coverage under a particular group health plan is referred to as the “reportable cost,” and the aggregate cost of applicable employer-sponsored coverage is referred to as the “aggregate reportable cost.” The aggregate reportable cost generally includes both the portion of the cost paid by the employer and the portion of the cost paid by the employee, regardless of whether the employee paid for that cost through pretax or after-tax contributions. In addition, the aggregate reportable cost also includes any portion of an employer-sponsored group health plan’s cost of coverage that is includable in the employee’s gross income.

For the purposes of the notice requirement, “applicable employer-sponsored coverage” means coverage under any group health plan (including onsite primary-care medical clinics) made available to the employee by an employer that is excludable from the employee’s gross income under Section 106 or would be excludable if it were employer-provided coverage. (Thus, employee-pay-all group health coverage is included.) However, when calculating the applicable employer-sponsored coverage do not include the following coverage:

  • Long-term care
  • Accident or disability income insurance, or any combination of the two
  • Supplement to liability insurance
  • Liability insurance, including general liability insurance and automobile liability insurance
  • Workers compensation or similar insurance
  • Automobile medical payment insurance
  • Credit-only insurance
  • Other similar insurance coverage, specified in regulations, under which benefits for medical care are secondary or incidental to other insurance benefits
  • Any coverage under a separate policy, certificate or contract of insurance that provides benefits substantially for treatment of the mouth (including any organ or structure within the mouth) or for treatment of the eye
  • Coverage only for a specified disease or illness
  • Hospital indemnity or other fixed indemnity insurance

©2002-2012 Fowler White Boggs P.A.

But Wait! There’s More: The 11th Right to Work Misconception

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We’ll take the liberty of adding an 11th item to Scott Witlin’s excellent list of the top-10 most common right to work misconceptions.

11.  Right to work laws do not necessarily allow employees to immediately stop paying dues.

The devil’s in the details. In numerous Indiana union shops, workers asked to be freed from their dues-paying obligations after Right to Work was enacted. Michigan employers may be experiencing this already as well. Some Indiana employers stopped deducting their union dues. But it’s not the simple. As we have discussed before in this blog, employers must retrieve their employee’s dues authorization cards before they can stop taking union dues from their paychecks. As the NLRB has previously held in several cases, the language in the dues authorization cards control as to when and how an employee can revoke his or her consent to the dues deductions.

© 2012 BARNES & THORNBURG LLP

Michigan’s New Right to Work Law: What It Means for Employers, Workers and the Upper Midwest

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On December 11, 2012, Governor Rick Snyder signed into law two bills collectively enacting “Right to Work” legislation in the State of Michigan. Michigan becomes the 24th state to enact some form of a right to work law, and joins Indiana as the second state in the Upper Midwest to do so in 2012. Wisconsin passed a similar law in 2010, though that highly publicized legislation applied only to public sector employers and unions. The most significant aspect of right to work laws is that they prevent unions and employers from requiring workers to join a union or to pay union dues as a condition of employment. The law will take effect gradually (it takes effect on or around April 1, 2013), as it allows all current collective bargaining agreements between unions and employers to remain in place.

So what does the new law actually say? Michigan’s Right to Work Law was passed as two separate Public Acts. Public Act 348 addresses private sector unions and amended 1939 PA 176, which governs many union activities and the relationship between unions and private employers in Michigan. Public Act 349 is a nearly identical Act that relates to public sector employers and unions. The following is a summary of significant changes to private sector relationships between unions and employers as a result of Public Act 348:

  • Outlaws Closed Shops. Private sector employees may now choose whether or not to join a union or pay any dues or charitable contributions in relation to union membership. Individuals can no longer be required, as a condition of new or continued employment, to join or pay dues to a union, or to pay any charitable organization or third party an amount in lieu of union dues. Employees in Michigan can now decide, individually, whether they want to join a union and pay dues (“open shop”). Under prior Michigan law, an employee, by a labor agreement, could be compelled to join a union and pay dues (referred to as “closed shop” or “union security” clause). That is now banned.
  • Individuals Still Must Be Allowed to Join Unions. Consistent with prior Michigan law, individuals shall not be required to refrain or resign from membership in or to avoid financially supporting a union as a condition of employment.
  • Invalidates Closed Shop Agreements. Any agreement, contract, understanding, or practice between an employer and a labor organization that violates the Act is invalid.
  • Current Collective Bargaining Agreements Unaffected. The Act contains a “Grandfather Clause.” The prohibition against closed shop agreements applies only to an agreement, contract, understanding, or practice that takes effect or is extended or renewed after the effective date of the Act.
  • Violation Subject to Civil Fine. Any individual, employer, or labor organization that violates Section 1 of the Act by requiring an individual to join or resign from a union, or pay or refrain from paying dues, may be fined up to $500.
  • Private Right of Action for Injured Persons. Any person injured by a violation of the Act (i.e. forced or threatened to be forced to join or quit a union as a condition of employment) may file a civil action for injunction and damages. The provision contains a “fee shifter,” meaning a prevailing plaintiff gets costs and reasonable attorney fees associated with the civil action.
  • Employees Subject to Civil Fines for Intimidation. Any employee who attempts to compel by force, intimidation, or unlawful threats any person into joining a union or paying dues may be liable for a civil penalty of up to $500.
  • Responsibilities of the Michigan Department of Licensing and Regulatory Affairs (LARA). The Act allocates $1 million to LARA to do the following: (1) respond to public inquiries regarding the Act; (2) provide sufficient staff and resources to implement the Act; and (3) inform employers, employees, and labor organizations concerning their rights and responsibilities under the Act. An informational hotline, website, and/or informational pamphlets are likely to become available as a result of this section.

Public Act 349 contains nearly identical provisions pertaining to public sector employers and unions in Michigan. The only significant difference in Public Act 349 is it contains an exception for public police, fire departments, and state police unions. These unions may continue to collectively bargain for an agreement that all members of their organization shall pay union dues or fees to their union or exclusive bargaining representative.

There are likely to be challenges, both legal and political, to the new legislation. Labor unions, including the Michigan-based UAW, have already pledged to challenge the Acts in court. The Acts grant exclusive jurisdiction to the Michigan Court of Appeals, and indicate that the Court of Appeals will hear the action in an expedited manner. From a political standpoint, the monetary allocation to LARA in each Act prevents a referendum on the Acts because of language in Michigan’s Constitution. Instead, the UAW has indicated it will attempt to recall state legislators who supported the Act, and potentially Governor Snyder. A recall effort as to Governor Snyder may be less likely because he is up for re-election in 2014, but one might expect a scene similar to what played out in Wisconsin throughout 2011.

The significance of this legislation will also be felt throughout the Upper Midwest. Like Wisconsin, Michigan may be viewed as a bellwether for union opposition to right to work legislation. State and local governments, as well as private employers operating in closed shop states will need to remain aware of regional trends and shifting business climates as the right to work legislation in their neighboring states begins to take effect. As Michigan’s neighbor to the south, Ohio is now potentially under more pressure to pass a right to work measure given that its surrounding neighbors, Indiana, Kentucky, and now Michigan, are right to work states.

MBF client-employers will want to continue to monitor legislative developments, especially those clients making site selection decisions either to expand existing facilities or open new locations. Also, for those clients with operations in Michigan, there are issues to consider now including employee communications and other impacts the new Michigan law will have on existing operations.

© MICHAEL BEST & FRIEDRICH LLP

Right to Work Passes, Signed by Michigan Governor

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As expected, the Michigan House voted today to enact the pending Right to Work bills. Michigan Governor Rick Snyder signed the bills this evening, making Michigan the 24th Right to Work state in the nation. The changes to the law become effective 90 days following the end of the 2012 legislative session, making the effective date likely to be on or about April 1, 2013.

The full text of the final bills is available on the Legislature’s website and can be accessed by clicking on the links below:

SB 116(private employees)
HB 4003(public employees)

© 2012 BARNES & THORNBURG LLP

“Employee” Status Not Necessarily Dependent on Compensation

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While Title VII discrimination claims apply only to “employees” and “employers,” the statute’s definitions of those terms are spectacularly unhelpful. An employee is someone who is employed by an employer. 42 U.S.C. § 2000e(b) & (f). Thanks, Congress! In light of this thoroughly circular definition, courts use agency principles to determine employment status when such is not clear.

An illustrative opinion was recently issued by the Northern District of Illinois in Volling v. Antioch Rescue Squad. In Volling, one of the main questions was whether the members of ARS’s volunteer ambulance squad should be considered employees for purposes of Title VII. The opinion can be found here.

Several factors are considered in making this employment determination, including: the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. No single factor is dispositive, but courts will often give great weight to the amount of control the putative employer has over the putative employee.

Defendant ARS argued that the volunteer ambulance squad could not be employees because they received no payment. This view seems to be supported by the Second and Fourth Circuits, which require significant economic remuneration for a worker to be considered an employee for Title VII purposes. The Seventh Circuit has yet to rule on the issue, but the district court noted that the Seventh Circuit has rejected labels such as “volunteer” and endorsed the consideration of the common law factors listed above.  Accordingly, the district court agreed with the Sixth Circuit’s view that compensation is just one factor to be considered in the employment analysis. Perhaps significantly, the Volling court stated that compensation may well be less important with regard to not-for-profit organizations such as ARS than to commercial employers.

Thus, the court took into consideration the facts alleged by the plaintiffs, which included, among other things, that plaintiffs: are assigned to work specific shifts and defendants control who works those shifts with them; performed their work in the station and ambulances operated and used by ARS; are required to wear uniforms; received training; had to go through probationary periods; and had supervisory subordinate relationships with team leaders and board members of ARS.

Based on the degree of control exercised by ARS and the mandate to construe Title VII broadly to prevent discrimination, the court refused to dismiss the case for a lack of an employment relationship. “A workplace is not necessarily any different for a non-compensated volunteer than it is for a compensated ‘employee,’ and while both are generally free to quit if they don’t like the conditions (at-will employment being the norm), neither should have to quit to avoid sexual, racial, or other unlawful discrimination and harassment.”

This case serves as a good reminder that – similar to problems that can arise from using independent contractors – just because a worker is considered to be and labeled an unpaid volunteer, trainee, or intern doesn’t mean the employer is necessarily shielded from Title VII (or other federal statutory) liability. What counts is how those workers are treated, not how they are labeled.

© 2012 BARNES & THORNBURG LLP

Holiday Warning: Cut Sexual Harassment From Your Holiday Party Invitation List

The National Law Review recently published an article by Matthew J. Kreutzer of Armstrong Teasdale, Holiday Warning: Cut Sexual Harassment From Your Holiday Party Invitation List:

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A recent federal judge’s decision allowing a sexual harassment case to proceed against an employer is a sobering reminder that the lighthearted, and sometimes drunken, atmosphere at office holiday parties does not equate to a free pass for your employees to engage in unwanted touching, lewd comments and other types of inappropriate behavior that otherwise would not be tolerated. Indeed, employers who fail to protect themselves can be held liable for workers’ conduct that might easily get out of hand at festive events particularly when there is drinking.

Just in time for the 2012 holiday party season, the U.S. District Court for the Western District of New York refused to dismiss a sexual harassment lawsuit filed against the State University of New York growing out of just such a party. (Shiner v. State University of New York, University at Buffalo, No. 11-CV-01024.)

The plaintiff, a clerk working at the University at Buffalo Dental School, alleged she had not wanted to attend the school’s annual holiday party because the conduct at previous events made her uncomfortable. However, a supervisor encouraged her to attend the party, which was held at a local bar. During the party, an associate dean, with supervisory authority over the plaintiff, allegedly made sexual advances toward her that included fondling her, putting his tongue in her ear and pulling her onto his lap. Another department official with supervisory authority allegedly cheered him on.

The plaintiff filed claims of sexual harassment under state and federal anti-discrimination laws, as well common law claims of assault and battery. The judge is allowing the case to proceed to trial, exposing (no pun intended) the employer to a potentially large monetary liability.

Employers can reduce the threat of misbehavior that gives rise to these kinds of allegations by, for example:

  • Reminding employees prior to the event that the company’s code of conduct remains in effect during the event
  • Establishing procedures in advance to handle any inappropriate behavior that might occur
  • Limiting the amount of drinking

If an employee does come to you with a sexual harassment complaint, please consider it seriously and take prompt action as necessary to investigate and stop the harassment.

© Copyright 2012 Armstrong Teasdale LLP

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