achra - employment law update august 23, 2011 presented by: sarah h. roane and william b. warihay...
TRANSCRIPT
ACHRA - Employment Law UpdateAugust 23, 2011
Presented By:
Sarah H. Roane and William B. Warihay
Ogletree, Deakins, Nash, Smoak & Stewart (Greensboro)
336.375.9737
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What’s new in 2011?
Genetic Information Nondiscrimination Act (GINA) EEOC regulations become effective
Recent U.S. Supreme Court Decisions Thompson v. North American Stainless – Title VII
retaliation Staub v. Proctor Hospital – “Cat’s Paw” Liability Kasten v. Saint-Gobain Performance Plastics – FLSA
retaliation Recent 4th Circuit Decision
EEOC v. Cromer Food Services ADA Amendments Act Social Media Legal Issues in Employment
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TOPIC #1: GINA REGULATIONS
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GINA Regulations
Title I applies to group health plans and insurers
Regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) took effect January 10, 2011
Title II of GINA prohibits employers from: Using genetic information in making employment
decisions Harassing/ retaliating against employees based on
genetic information Disclosing genetic information about applicants or
employees
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WHO IS COVERED BY GINA?
Covered EmployersApplies to employers who employ 15 or more
employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year
EEOC believes there is no individual liability under Title II
Employee includes “former employee”E.g. Disclosure of former employee’s genetic
information to a prospective employer
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What is “Genetic Information”? Genetic information
Individual’s genetic tests Family member’s genetic tests Manifestation of disease or disorder of family
member (family member’s medical history) Receipt of genetic services
Does not include individual’s health history or current diagnosis.
Does not include age or gender. “Family members” – includes any dependents
and relatives to the “fourth degree” (i.e. Great-Great Grandparents) Including unborn fetuses or embryos.
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GINA (cont’d)
Title II of GINA even prohibits employers from simply acquiring employee genetic information unless an exception applies.
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ACQUISITION OF GENETIC INFORMATION
Prohibition: Unlawful to request, require or purchase genetic information of an individual or family member EEOC rejected “deliberate acquisition” position
“Request” includes conduct likely to result in obtaining genetic information: Conducting Internet search Active listening to conversations of others Making requests for information about an individual’s
current health status
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GINA Procedures
Title II of GINA requires an employer to keep any genetic information it acquires confidential, which includes maintaining any written genetic information in a file separate from an employee’s personnel records.
However, genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.
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What are the exceptions?
Common exceptions include: The information is acquired inadvertently; The information is acquired as part of health or
genetic services provided on a "voluntary" basis, including a "voluntary" wellness program;
The information is acquired in order to comply with FMLA certification requirements, state or local leave law, or certain employer leave policies.
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Exceptions Examined - Requests
Covers Employers that inadvertently acquire genetic information pursuant to lawful requests for medical information.
To assist employers in meeting this exception – the final regulations offer specific language to use on any lawful forms or requests.
Example: Overbroad responses
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Exceptions Examined – “Water Cooler”
Congress was concerned that casual conversation between co-workers regarding health could unnecessarily lead to litigation.
Final regulations – Employer will not violate GINA where a manager or supervisor overhears a conversation about genetic information between the individual and others, or hears it directly through casual conversation.
Regulations warn: If the supervisor probes further with individual questions likely to result in the receipt of genetic information – exception no longer applies.
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Exceptions Examined – Social Media
Employer will not be liable under GINA where a manager or supervisor inadvertently learns of genetic information from a social media platform to which he or she was given access by the creator of the profile.
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Exceptions Examined – Wellness Programs
Acquisition of genetic information pursuant to a VOLUNTARY wellness program will not violate GINA if: (1) Genetic information is provided voluntarily by the
individual; (2) Individual provides prior knowing, written and
voluntary authorization; and (3) Individually identifiable genetic information is
provided only to the individual or qualified health personnel and not to the employer.
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Medical Exams Relating to Employment
Regulations make clear that the prohibition against acquiring family medical history applies to medical examinations related to employment.
Employers are required to specifically advise health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine an individual’s ability to perform a job.
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Recommendations
Employer forms used to request medical information should EXPRESSLY advise health care providers that genetic information is not requested by the employer.
Use the “Safe Harbor” language on all requests. Train managers and supervisors on the vast scope and
dangers of violating GINA. Violations? COSTLY
Remedies include – compensatory and punitive damages, attorneys and expert fees, and injunctive relief (including reinstatement, hiring, and back pay)
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GINA Recap
Effective 1/10/11 GINA prohibits acquiring genetic information Exceptions
Requests for medical information “Water cooler” discussions Voluntary wellness programs
How does it affect me? Most employers probably need to modify their employment
policies, procedures, and forms to ensure compliance with the new law.
Specifically – any post-offer medical questionnaires or medical examination forms.
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TOPIC #2: KEY CASE DECISIONS
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THE UNITED STATES SUPREME COURT
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ORAL COMPLAINT SUFFICIENT TO PROTECT EMPLOYEE FROM RETALIATION
UNDER FLSA
Kasten v. Saint-Gobain Perf. Plastics Corp. (3/22/11) Kasten received three disciplinary notices for “issues” he
had with punching in and out on the time clock. After each notice, Kasten alleged that he verbally
complained to supervisors about the location of the time clock in the plant – he alleged that it prevented employees from getting paid for the time they spent putting on their protective gear.
Kasten received a fourth notice, was fired, and filed suit alleging retaliation for his verbal complaints.
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Kasten v. Saint-Gobain Perf. Plastics Corp.(Cont’d)
FLSA forbids employers “to discharge or in any other manner discriminate against any employee because such employee had filed any complaint ... related to the Act.”
Court found that a narrow reading of “filed any complaint” to only include written complaints would unnecessarily restrict those employees most in need – “illiterate, less educated, or overworked”
Held: “Filed any complaint” includes oral complaints from the employee
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Kasten v. Saint-Gobain Perf. Plastics Corp.Impact on Employers
Risk of a slippery slope What about break room griping? Venting out on the plant floor overheard by a team leader?
Train all levels of supervision and administration to recognize a potential oral complaint under the FLSA Working off the clock Working through lunch – not “free and clear” On-call time Overtime Minimum wage Youth labor Deductions from wages After hours compensable time – Blackberry usage, etc.
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Cat’s Paw Liability
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SUPERVISOR’S INFLUENCE ON DISCRIMINATORY DECISION CREATES
EMPLOYER LIABILITY Staub v. Proctor Hospital (3/1/11)
Staub was an employee of Proctor Hospital and a veteran member of the U.S. Army Reserve
Staub’s immediate supervisors were allegedly hostile to his military obligations because of the strain it placed on scheduling and the other employees
Supervisors issue a “Corrective Action” that was allegedly false
Subsequently, Staub is fired for failing to abide by the “Corrective Action”
Staub sues alleging discrimination in violation of the USERRA
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Staub v. Proctor Hospital (Cont’d)
Prior to this case, there were a number of different standards across the country for cat’s paw” supervisor liability. Bias imputed unless “totally independent”; Bias imputed if “singular influence” by the biased
party; Bias imputed unless adequate investigation by higher
supervisor; Bias imputed only if decision “wholly dependent” on
facts as presented by biased person.
7th Circuit in the last camp. Supreme Court reversed.
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Staub v. Proctor Hospital (Cont’d)
Court held: “If a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.”
Thus, an independent investigation does not shield employer from liability if it takes into account a supervisor’s biased report.
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Staub v. Proctor HospitalImpact on Employers
This case requires much more scrutiny of each underlying disciplinary act along the way to a termination, and the motives of each supervisor involved in those decisions
Be absolutely clear who your decision maker is and who your decision maker is not, be careful with loose language – “reviewed”, “recommended”, “approved”, was “advised” or “notified” of termination
If you have concerns about the motivation of someone lower in the chain, insulate your decision from him or her and do not incorporate his or her performance reviews or discipline into your case to terminate
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CAN A THIRD PARTY MAINTAIN A RETALIATION CLAIM UNDER TITLE VII?
Thompson v. North American Stainless, LP (1/24/11)
Miriam Regalado, Thompson’s fiancé, filed a gender discrimination charge against Defendant with the EEOC.
Three weeks later, Defendant fired Thompson.
Thompson claimed he was fired because his fiancée filed an EEOC charge.
Court assumed that Defendant fired Thompson to retaliate against Regalado
Thompson will be required to prove this at trial.
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Thompson v. North American Stainless (Cont’d)
Title VII grants Plaintiff a cause of action because he is a "person claiming to be aggrieved ... by an alleged employment practice." The plaintiff was within the "zone of interests" sought to be protected by the statute.
Court held: "We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.“
Bottom line: Anti-retaliation protections of Title VII extend to employees who are the close family members of another employee!
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Thompson v. North American Stainless (Cont’d)
Very important decision – especially given that retaliation has become most common EEOC charge.
Employers should resist the temptation to fire a spouse, significant other or close relative of an employee who has filed a complaint/claim because their relationship would “be a problem” in defending the claim.
Before taking action, review actions with counsel.
No clear line as to what relationships are sufficient enough to be included in this rule.
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FOURTH CIRCUIT COURT OF APPEALS
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EEOC v. Cromer Food Services
Homer Howard was a route driver for a food-stocking company that sells snacks and beverages in vending machines
Howard was harassed on a daily basis by two male employees at a hospital where he stocked food for the vending machines Harassment included name calling, graphic
discussions of oral sex, groping and propositioning Cromer’s sexual harassment policy required
employees to report harassment directly to the Company’s President
Instead, Plaintiff reported harassment to three different Cromer supervisors, the Chairman of the Board, the hospital’s HR dep’t, and the harassers’ supervisor
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EEOC v. Cromer Food Services
Cromer took no action to stop the harassment because (1) they told Howard to “let it go”, that it was all just “joking”; and (2) they claimed that because the harassers were customers and not Cromer employees, it was “out of their control”
Howard went to the EEOC Cromer then offers him a position on a shift
which doesn’t involve the hospital – for less money!
Howard says no thanks . . . And is fired!
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EEOC v. Cromer Food Services (Cont’d)
Court adopts “negligence” standard for employers: Employer is liable for sexual harassment by third parties if
it knew or should have known of the harassment and failed to take appropriate actions to halt it.
Court found that a “reasonable person” would have known about the harassment given Plaintiff’s “vocal and vociferous complaints to practically anyone who would listen.”
Court blasts harassment policy for requiring complaints to the Company President: “An employee might be easily intimidated and fail to report it such that the Company would be technically insulated from liability. We do not find such a result just or proper.”
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EEOC v. Cromer Food Services (Cont’d)
What about the offer to transfer to the new shift?
Unacceptable says the Court! Howard will end up making less money and the new shift conflicts with his childcare responsibilities.
“A remedial measure that makes the victim worse off is ineffective per se. Furthermore, corrective action is not enough if it is too little, too late.”
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EEOC v. Cromer Food ServicesImpact on Employers
Remember that you are responsible for ensuring your employees are not harassed by any third parties – guests, customers, vendors, suppliers, independent contractors, etc.
Include multiple channels of complaint for harassment victims/witnesses, a high level executive should be a last resort!
When considering solutions, ask yourself if the victim would be worse off in any sense of the word – compensation, hours, benefits, schedule
Have the victim sign off on any agreement to transfer to a different job, shift, department, location, reporting structure, etc.
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EEOC v. Cromer Food ServicesImpact on Employers
It is always preferable to inconvenience the harasser – not the victim!
What else could Cromer have done? Availed itself of its relationship with the hospital to
ask the hospital’s management to investigate and discipline the harassers
Asked its other employees if anyone wanted to switch routes with Howard
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ARE WE HAVING FUN YET?!
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TOPIC #3: ADA AMENDMENTS ACT
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AMERICANS WITH DISABILITIES ACT (“ADA”)
Two Cornerstones: Prohibits Discrimination Against Qualified Individuals
With a Disability (“QIWD”) Requires Employers to Provide Reasonable
Accommodation to QIWD
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QIWD: A Two-Part Definition
1. “Qualified” Can perform essential job duties with or without
reasonable accommodation
2. “Disability” A physical or mental impairment that
substantially limits a “major life activity” OR A record of such impairment OR Being regarded as having such an impairment
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DISABILITY DISCRIMINATIONWhat Are the “Essential Functions” of a
Job?
In general, “essential functions” of a job mean the primary job duties
In deciding whether a function is essential, consider such things as whether: the job exists to perform that function there are a limited number of employees available to
perform the function the function is highly specialized could you do the job without the function?
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DISABILITY DISCRIMINATIONWhat is a “Physical Impairment”?
Any physical disorder or condition, cosmetic disfigurement, or anatomical loss affecting a major body system. Such as: visual, speech, hearing and orthopedic impairments cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, HIV disease, tuberculosis
Recovery/rehabilitation from drug addiction and alcoholism (NOTE: active use is not a disability)
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DISABILITY DISCRIMINATIONWhat is a “Mental Impairment”?
Any mental or psychological disorder, such as emotional or mental illness, including: major depression bipolar disorder post-traumatic stress disorder (PTSD) anxiety disorders schizophrenia obsessive-compulsive disorder (OCD) personality disorders (must be pathological, not just
annoying!)
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DISABILITY DISCRIMINATIONWhat Is Not an “Disability”?
A “disability” does not include: Temporary, non-chronic impairments of short duration with
little or no residual effects e.g. common cold, flu, sprains, standard stomach aches,
broken bones expected to fully heal physical characteristics such as eye or hair color, being
left-handed or height or weight that is within “normal” range EEOC says you must be 2 times the normal body weight, or
morbidly obese, for weight to become a disability common personality traits, such as poor judgment or a
quick temper, that do not rise to the level of a diagnosable personality disorder
advanced age in and of itself pregnancy in and of itself
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ADA Amendments Act of 2008 (ADAAA)
Passed by Congress on September 25, 2008 Expressed Congress’ clear intention that the
ADA be interpreted broadly and that the EEOC’s current regulations were inconsistent with that intent
Legislatively overturned the Supreme Court in two cases where Congress felt the results conflicted with Congressional intent of broad protection
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ADA Amendments Act of 2008
Bottom line – makes it easier for individuals with disabilities to obtain protection under the ADA
Directed the EEOC to promulgate new regulations to implement this intent
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Litigation Landslide
2010 - 25,165 disability claims 2009 - 21,451 disability discrimination
charges Highest number of disability charges in
ADA’s 20-year history Largest percentage increase of any
protected category Up 7,000 charges from 2007 Reasons: recession and ADAAA
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Final Regulations and Revised Interpretive Guidance Issued on March 25, 2011 Provide for broad coverage under the
ADA Focus on the issue of whether
discrimination occurred rather than coverage issues
Make “reasonable accommodation” a regular part of doing business
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Statutory Changes to Definition of Disability
“Substantially limited” redefined Formerly defined as the person is either:
unable to perform the major life activity OR significantly restricted as to how, or for how long, the
person can perform the activity Now meets when impairment substantially
limits (or substantially limited in the past) the individual in performing a major life activity as compared to most people in the general population Need not prevent Need not significantly or severely restrict
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Major Life Activities Expanded
Caring for oneself Performing manual tasks Seeing Hearing Speaking Breathing Working Walking
BendingEatingSleepingLearning ReadingConcentratingThinking Communicating StandingLiftingSittingReachingInteracting with Others
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Major Life Activities Expanded
“Major Life Activities” now include “Major Bodily Functions”• Functions of the immune system, special sense
organs and skin• Normal cell growth• Digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions
• List is not exhaustive – any basic activities that most people in general population can do with little or no difficulty
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Beneficial Effects of “Mitigating Measures” Cannot be Considered
Formerly: Could consider “mitigating measures” such as medication, a prosthesis, or other aides in determining whether an impairment is a “disability”
ADAAA: Mitigating measures may not be considered in determining whether an individual is “disabled” – if impairment would substantially limit a major life activity without the mitigating measure, it is a “disability”
Exception: “ordinary eyeglasses and contact lenses” that “fully correct” vision.
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Impairments in Remission
Impairment that is episodic or in remission is a disability if it would be substantially limiting when active
This was included to ensure that conditions like multiple sclerosis, bipolar disorder, epilepsy, diabetes and cancer will almost always be considered “disabilities”
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“Record of” a Disability
Protects an individual who may have had a physical or mental impairment that substantially limited a major life activity in the past but no longer does
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“Regarded as” Redefined
An applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA, (e.g. not hired, not promoted, fired), based on an impairment that is not short-lived (lasting six months or less) and minor
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DISABILITY DISCRIMINATIONWhat Is a “Reasonable Accommodation”?
In general, a reasonable accommodation is a change to the work environment, or to the way the job is usually done, that allows a qualified individual with a disability to perform the essential functions of the job
Employer does not have obligation to grant a reasonable accommodation if to do so would pose an “undue hardship”
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DISABILITY DISCRIMINATIONWhat Is an “Undue Hardship”?
Undue hardship is a measure of the employer’s difficulty or expense in providing the accommodation
It is conclusion that should be based on a consideration of all surrounding circumstances
Consider factors such as:- the nature and cost of the required accommodation
- the overall financial resources of the facility involved
- the type of business operations involved
- safety of the individual and others
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Examples of What Are Sometimes Reasonable Accommodations
Making the workplace readily accessible Ex. Moving furniture to widen a corridor to allow the
passage of a wheelchair Restructuring the employee’s job duties
Ex. Can someone else do the overhead reaching? Can you lower the shelf the copy paper is stored upon? Can you give them a sit/stand option?
Modifying the employee’s work schedule Ex. Working 30 hours per week or going out on a medical
leave of absence (but not indefinitely!) Reassigning the employee to a different job Obtaining or modifying equipment or devices Modifying exams, training materials or policies
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Limits on Duty to Reasonably Accommodate
No duty to eliminate an essential job function No duty to provide employee with the
accommodation of their “choice” No duty to lower production standards No duty to provide personal use items like
canes, glasses, hearing aids, etc.
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Obligations of Employer Upon Receiving Request for Accommodation
There are no “magic words” that an employee must use to request a reasonable accommodation -- “I need 6 weeks off to get treatment for a back
problem” “I’m having trouble getting to work at my scheduled
time because of medical treatments I’m undergoing” “My wheelchair does not fit under my desk” A doctor sends a letter releasing employee to return
to work, but with certain work restrictions or “light duty”
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Reasonable Accommodations: Interactive Process
An accommodation request triggers a duty to engage in an informal “interactive process” to clarify what the employee needs and identify an appropriate reasonable accommodation, if any
Employer may ask relevant questions that will enable the employer to make an informed decision about the request
Employee should describe the problems posed by the workplace barrier
Employee often is in a position to suggest the type of accommodation to be provided
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Document the Interactive Process
Document the steps of this interactive process: When and where did you meet? Who was present? What were the barriers/issues presented by the
employee? What were the reasonable accommodations
considered? What were the pros/cons of each? What was ultimately decided?
Again, be sure to keep these records in a file marked “CONFIDENTIAL” and separate from other personnel documents
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Rights of Employer Upon Receiving Request for Accommodation
What if you have questions about whether the employee or applicant needs the requested accommodation? If the need for accommodation is not obvious, the
employer may ask for reasonable documentation of the disability and accommodation needed from the employee’s health care provider
Again, be sure to keep any medical records in a file marked “CONFIDENTIAL” and separate from other personnel documents
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Confidentiality In addition to keeping records confidential, the
employer may not disclose to anyone without a need to know that an employee is receiving a reasonable accommodation because this usually amounts to a disclosure that the person has a disability
If co-workers ask why an employee is receiving what is perceived as “different” or “special” treatment – manager may emphasize company policy of assisting any employee who encounters difficulties in the workplace
Manager can point out that many of the workplace issues encountered by employees are personal and it is our policy to respect employee privacy
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DISABILITY DISCRIMINATIONDirect Threat
Employers can refuse to place an employee in a job if doing so would pose a direct threat: to the health or safety or the employee OR to the health and safety of others
Must consider the nature of the job involved and the magnitude of the risk Is it a safety-sensitive job? Does the employee contact the public? Drive
company a vehicle? Serve food and drink? Is the job highly stressful?
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DISABILITY DISCRIMINATIONIllegal Pre-Employment Inquiries
Are you HIV positive? Do you have AIDS? Have you ever applied for workers'
compensation? What prescription drugs are you currently
taking? (you can have them disclose this in conjunction with a post-offer drug test to rule out a false positive)
Have you ever been treated for mental health problems?
How many days were you sick last year?
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DISABILITY DISCRIMINATIONLegal Pre-Employment Inquiries
Can you perform the essential functions of this job with or without reasonable accommodation?
Describe or demonstrate how you would perform these functions
Can you meet the attendance requirements of the job?
Do you have the required education to perform this job?
Do you have the required licenses to perform this job?
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DISABILITY DISCRIMINATIONPost-Offer Medical Exams
Job offers can be conditioned on the results of post-offer medical exams, provided that: all employees in the same job category or with
the same condition are subjected to such exams all medical records are kept confidential
(preferably under lock-and-key in a file marked “CONFIDENTIAL MEDICAL RECORDS”) and separate from the applicant’s/employee’s other personnel records
Cannot require employee to see a company-chosen doctor
Employee can be required to pay for the exam
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Disability Discrimination Quiz
Question: A 30-year old female employee requests leave for
infertility treatments. Disabled? Reasonable accommodation?
A 50-year old female employee makes the same request. Still disabled?
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Disability Discrimination Quiz
Question: An applicant has a sprained wrist and is turned
down for the job. Can he bring a disability discrimination claim? How about a “regarded as” claim?
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Disability Discrimination Quiz
Question: A wheelchair-bound employee wants you to install a
second water fountain that is low enough for her to use. It will cost $10,000. You are a small business with less than 100 employees. Reasonable? What other alternatives are there?
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Disability Discrimination Quiz
Question: An employee has been out on unpaid medical
leave for 10 months. She has used up all of her FMLA. Her doctor is saying she remains unable to work and that he cannot give any kind of estimate when or if she can return to work. Does the ADA require the employer to continue her leave as an accommodation?
Same fact, but Doctor says she can return to work in 6 weeks. What should the employer do?
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Disability Discrimination Quiz
Question:
Is a person disabled under the ADAAA if she has sleep apnea and it substantially impairs her ability to sleep, with no other impacts on her life activities?
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Disability Discrimination Quiz
Question:
Is a person disabled under the ADAAA if he has epilepsy, which he controls with regular medication, and there is no history of seizures, and no work limitations of any kind?
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TOPIC #4 SOCIAL MEDIA IN THE WORKPLACE
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What’s Out There? Social Networking Sites:
Facebook, MySpace, Friendster Twitter, Spokeo, MyLife Classmates.com, YouTube
Web Logs – “Blogs”
a personal online journal that is frequently updated, intended for general public consumption and often encourages comments or discussions
Professional Networking Sites:
Plaxo
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Headline Making Events – Diary of a Fired Flight Attendant
Ellen Simonetti, a Delta Airlines flight attendant, was fired for her blog, Diary of a Flight Attendant (now called Diary of a Fired Flight Attendant).
Delta became aware of her blog with “inappropriate” pictures, including two of her in a Delta uniform.
Simonetti has since filed an EEOC charge, claiming that she was treated differently than a male would have been.
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Headline Making Events – The Fairy Intern
On October 31, an intern e-mailed his employer that he could not come to work as he needed to get to NY immediately for a family emergency.
Instead, he attended a Halloween party, posting on his Facebook page a dated picture of himself dressed as a fairy.
The picture was promptly noted by his bosses, distributed around the office along with an e-mail thanking him for the notice, hoping everything was ok and adding “…nice wand.”
He was fired for lying.
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Headline Making Events – “Cisco Fatty”
An applicant, immediately after being offered a job at Cisco, ‘tweeted:’ “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”
A Cisco employee responded: “Who is the hiring manager? I’m sure they would love to know that you will hate work. We here at Cisco are versed in the Web.”
This individual was not hired by Cisco.
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Headline Making Events – Microsoft
A Microsoft employee posted a photo to his weblog of pallets of new Apple computers on the Microsoft loading dock with the caption “It looks like somebody over in Microsoft land is getting some new toys.”
Microsoft fired him claiming he was a security risk.
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CYBERSPACE ISSUES PRESENTED TO EMPLOYERS
What are the risks of accessing and evaluating cyber-information on applicants as part of the screening process?
What are the risks of using cyber-information to take disciplinary action against current employees?
Should you regulate or outright prohibit cyberspace activities by current employees?
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What are the risks of accessing and evaluating cyber-information on applicants as part of the screening process?
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Who is Doing It?
In a recent Jump Start Social Media Poll, 100 hiring managers at small, mid-size and large companies were surveyed –
75% use LinkedIn
48% use Facebook
26% use Twitter
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Information Contained Online: The Good, The Bad & The Ugly
Charitable activities
Educational background
Licenses
Certifications
Employment experience, including periods of unemployment
Hobbies
Special talents
Fluency in foreign language
Writing style
Grammar/spelling
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Information Contained Online: The Good, The Bad & The Ugly
Race
Gender
Political Views
Controversial Opinions
Religion
Children
National Origin
Sexual Orientation/Gender Identity
Age
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Information Contained Online: The Good, The Bad & The Ugly
Drug/Alcohol/Tobacco Use
Arrest/Criminal History
Marital/Family Status
Other “Lawful Out Of Work Activities”
Health/Psychiatric Issues
Prior Lawsuits/Charges
Bigotry
Workers’ Comp Claims
Records Of Disabilities
Union Membership
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Information Contained Online: The Good, The Bad & The Ugly
Whistleblowing
Disclosure Of Prior Employer’s Secrets
Employer Bashing
Gossip
Sexual Content
Harassment Of Co-Workers
Defamation Of Employer’s Clients Or Third Parties
Use of foul language
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Do Employers Really Want to Utilize This Information in Hiring?
Pros: Important decision to hire someone Invaluable information about character that
you might not get anywhere else Far easier to avoid a bad hire than to get rid
of a bad hire Failure to hire suits much less likely than
suits over termination Avoid negligent hiring claim
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Do Employers Really Want to Utilize This Information in Hiring?
Cons: Captive with information impermissible
to consider Taint otherwise well-based decision Tempt decision on improper information Make decision on incorrect information Bad publicity for company Increase likelihood of litigation
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New Tools to Help Limit Facebook Liability
New companies are emerging that allow employers to outsource the social media background source.
These companies will research the candidate based on employer-chosen criteria (sexually explicit photos, racist remarks, volunteer work, involvement in industry blogs etc.) but the results filter out “protected class” information (i.e. race, religion, family status, disability, or sexual orientation).
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What are the risks of using cyber-information to take disciplinary action against current employees?
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Do Employers Really Want to Utilize This Information on Current Employees?
Pros: Can be an effective way to catch employee
misconduct: Dishonesty about need for absence Harassing/discriminating behavior Disclosing confidential information Badmouthing company (but watch for protected activity!) Illegal conduct
Can have employees sign Social Networking Policy which makes clear employer will monitor any workplace use
Avoid negligent retention claim
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Do Employers Really Want to Utilize This Information on Current Employees?
Cons: Risk of inconsistency
Piecemeal information or happenstance
Real risk of making decision based on incorrect information
Bad publicity for company Increased likelihood of litigation
Statutory (retaliation, off-duty lawful conduct) Common law (invasion of privacy)
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Current Case Law
Konop v. Hawaiian Airlines (9th Cir. 2002) Hawaiian Airlines executive gains
unauthorized access to website maintained by pilot Robert Konop which is critical of the Airline
Executive’s unauthorized access could have constituted a violation of the Stored Communications Act (SCA) and the Railway Labor Act
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Current Case Law
Quon v. Arch Wireless Operating Co. (9th Circuit, 6/18/08). City-owned pagers issued to police. City requested vendor to provide transcripts of
text messages without users’ consent; some were sexually explicit.
Stored Communications Act (SCA) prohibits electronic communication services from disclosing content without users’ consent.
SCA violated by Arch Wireless; City, PD and Sargeant violated right to privacy.
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Current Case Law
Van Alstyne v. Elec. Scriptorium, Ltd. (4th Cir., 3/18/09) Allowed punitive damages under the Stored
Communications Act, even absent a showing of actual damages, where an employer had accessed an employee’s personal AOL e-mail account without the worker’s authorization.
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Current Case Law
Pietrylo v. Hillstone Restaurant Group, (D.N.J., June 16, 2009) Company managers surreptitiously monitored 2
employees’ postings containing complaints and sexual remarks about managers in a private, password protected MySpace account
Managers obtained the password from a female employee and then terminated the 2 employees
Employer liable for violating the federal Stored Communications Act and the NJ Wiretapping and Electronic Surveillance Control Act, because they obtained the password by duress
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Current Case Law Stengart v. Loving Care Agency, Inc., (NJ App. Div.,
6/26/09) Employee emails her attorney about potentially suing
Company using Company’s computer but her personal Yahoo email account
After employee resigns, Company accesses emails and tries to use them against her in the lawsuit
Court held e-mails protected by the attorney-client privilege
Company’s ambiguous computer monitoring policy did not make clear that personal emails are Company property
Court specifically rejected idea that Company’s ownership of the computer is the sole determinative factor in deciding whether an employee’s personal communications become Company property
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Recommendations on Use of Employee Cyberspace Activity
1. Informed Decision on Use of Internet Searches for Applicants/Employees
Know the pros and cons
Make an effort to minimize the use of impermissible information
Make every effort to verify factual information before basing a decision on it
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Recommendations (Cont’d)
2. Gut Check
Do not try to access or break into any site that you have not been provided authorization to access
Do not falsify information or impersonate another individual in order to attempt to obtain access
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Recommendations (Cont’d)
3. Retention of Information
Because you are opening the door to impermissible information, it is important to retain all permissible information on which you are basing your decision
Retain your search information so you cannot be accused of accessing information you did not
Retain information on the efforts you made to avoid accessing or using impermissible information
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Recommendations (Cont’d)
4. Focus on Job-Relatedness of Information
Study the job description or list of essential functions
Have defined search criteria that match the job duties
Have a list of the type of information you are looking for
Have a list of the information you do not intend to look at or use
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Recommendations (Cont’d)
5. Ensure Right Person is Involved
Don’t task this to someone who is not qualified and doesn’t have the right information
Should be an HR professional trained in these kinds of searches (if possible)
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Recommendations (Cont’d)
6. Consistently Apply Search Consistency, always important, is now even more
critical
You are accessing information you would otherwise never have obtained
Be consistent in your search criteria
Be consistent in your decision-making criteria
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Recommendations (Cont’d)
7. Check Terms and Conditions of Website Being Accessed
Do not violate the terms of a site in order to access information
Obtain appropriate information from your applicant or employee to access site lawfully
Some employers are asking for user names and passwords (!) to access password-protected sites like Facebook
A better practice would be to set up a Company page and request that the applicant/employee hit the “like” button
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Recommendations (Cont’d)
8. Timing of Search: Pre-Offer/Post-Offer
Pros of post-offer include Ability to avoid tainting otherwise well-based
decisions on people you have no intention of hiring
Cons of post-offer include Focusing the applicant on the reason for the
decision and potentially increased likelihood of litigation due to yanking of job offer
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Should you regulate or prohibit outright cyberspace activities by current employees?
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What Kinds of Trouble Can Employees Get Into?
Posting about confidential information or trade secrets
Posting defamatory statements about the company, its products/services or co-workers/bosses
Engaging in discrimination/harassment through social media
Picking up viruses, worms, Trojan horses and other malware that can infiltrate your company network
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What Kinds of Trouble Can Employees Get Into?
Posting offensive, embarrassing or otherwise objectionable content while identifying themselves with the Company
Waste and downtime at work
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Why Should You Care?
Postings can spread quickly to millions of people -- “viral” posts
Damage to the company’s reputation or brands Difficult to stop or “clean up” once out there Loss of confidential information is hard to cure Identity of offenders may be tough to learn Firing for Internet use may lead to lawsuits and
publicity
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NLRB Lawsuit – Nov. 2, 2010
NLRB Filed a Complaint in CT on October 27 Alleges that employee’s criticism of her supervisor on
Facebook is a “concerted activity” under the NLRA.
Employee was suspended and later terminated for Facebook comments because such comments violated the company’s internet policy.
Note: Employee engaged in this conduct on her home computer.
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How should an employer react to this lawsuit?
The companies Employee Handbook provided: “Employees are prohibited from making disparaging,
discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”
The question is: Could your policy be reasonably viewed as chilling the employee’s rights under Section 7 to act together and discuss the terms and conditions of their employment? If so, your policy is at risk under the NLRA.
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But I thought the NLRB was only regulated unions?
Section 7 grants employees the right to “engage in other concerted activities for the purpose of mutual aid and protection.”
Interpreted to protect non-union employees’ concerted efforts to better the conditions of their employment.
A blanket prohibition can “chill” Section 7 rights.
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Recent NLRB Advice Memoranda
Three recent decisions from the NLRB since have provided clarity to employers Incidentally, the clarity also comes with decisions
where the NLRB sided WITH the employers.
In all three cases, the NLRB explained that the misconduct for which the employees were terminated did not constitute “protected concerted activity”, but were rather more appropriately considered personal gripes outside the protection of the Act.
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JT’s Porch Saloon (July 7, 2011)
A bartender was fired after posting comments in a Facebook conversation with his sister expressing his hope that his employer’s “redneck” customers would “choke on glass as they drove home drunk.”
NONE of his co-workers participated in the Facebook conversation.
A few days later his employer terminated him (ironically via a Facebook message).
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Wal-Mart (July 19, 2011)
Employee was terminated after he took to his Facebook page to express frustration and insult his Assistant Manager. Among other things, he called his Assistant Manager
a “puta” and declared that her criticisms of his work were “retarded.”
He concluded his manifesto with the exclamation that Wal-Mart could “kiss [his] royal white ass.”
Although co-workers responded to his posts, they were expressions of individual support – not group action. (“Hang in there”)
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Martin House (July 19, 2011)
A Recovery Specialist at a non-profit residential facility for the homeless was terminated for posting inappropriate comments about residents. One night while on the clock, the employee posted a
series of comments about how “spooky” the institution was, the “voices” her clients hear, and how they would “just pop meds.”
Interestingly, none of the participants in the Facebook conversation were co-workers – and indeed, none of her co-workers were even Facebook friends of the employee.
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NLRB Reasoning
Keys to the NLRB analysis – factors that would lead to a finding of “concerted” activity: “With or on the authority of other employees” Preparation for group action “Truly group complaints to the attention of
management”
On the other hand… Comments made “solely by and on behalf of the
employee himself” are not concerted.
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Application of NLRB Reasoning
JT’s Porch – Employee was simply venting his personal frustration at work
Wal-Mart – Clearly complaining of his own relationship with the Assistant Manager, which seemed to be reinforced by the comments of his co-workers.
Martin House – Employee was making insensitive comments about the employer’s clientele.
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SOCIAL NETWORKING POLICY ELEMENTS
Employee must read and sign policy at outset of employment
Require adherence to company code of conduct/values No slurs, demeaning jokes, sexist terms,
offensive photos, etc. Prohibit disclosure of company confidential
information Remind employees of their own personal
responsibility for posts
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SOCIAL NETWORKING POLICY ELEMENTS
Disclaimers - reflect content of post as being author’s opinion alone, not the company’s
Can limit blogging, tweeting, facebooking while on the job to business-related purposes
Make clear that violation can lead to discipline, up to and including termination
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Questions or Comments?
ACHRA - Employment Law UpdateAugust 23, 2011
Presented By:
Sarah H. Roane and William B. Warihay
Ogletree, Deakins, Nash, Smoak & Stewart (Greensboro)
336.375.9737