natalie scruton federle - ilshrmilshrm.org/2017app/wp-content/uploads/2017/09/nataliefederle.pdf ·...
TRANSCRIPT
©2017 Jackson Lewis P.C.
Natalie Scruton Federle
Jackson Lewis P.C. | Chicago
[email protected] | 312.803.2505
www.jacksonlewis.com2
A Twist On the Usual
• Traditional employment claims in a context that employers may notexpect
Outside Conduct Coming In
• When an employee’s conduct outside of work creates liability for anemployer
Bringing it to Work
• When employees bring “things” to work
Going High Tech
• Things to consider with technology
Traditional Legal Claims in the Employment Context
Today’s Agenda
www.jacksonlewis.com3
Age Discrimination
• Most employers are familiar with the AgeDiscrimination in Employment Act
• The ADEA provides that employees over the age of40 cannot be treated differently because of their age
• Implicates an employee’s hiring, firing, discipline, etc.– all the terms and conditions of employment
A Twist On the Usual
www.jacksonlewis.com4
But age is just a number…
An employer was found to have discriminated against a74 year-old employee based on age when it terminatedhim and replaced him with a 68 year-old employee
The 74 year-old employee needed only to show that hewas replaced by someone “substantially younger”
In Illinois, employers contend not only with the ADEA,but also with the Illinois Human Rights Act.
A Twist On the Usual
www.jacksonlewis.com5
The Americans with Disabilities Act (“ADA”)
Protects employees with qualified disabilities fromdiscrimination in the workplace
Requires Employers to provide reasonable accommodations
Employers are familiar with:
• Requests for medical leave
• Requests for adjusted schedules
• To sit, instead of stand
• Time off from work to attend doctor’s appointments
• Dogs?
A Twist On the Usual
www.jacksonlewis.com7
The ADA Protects the Use of Service Animals
What is a “service animal?”
• A dog that is individually trained to do work or perform tasks for a personwith a disability
Examples of work include:
• Guiding the blind
• Alerting people who are deaf
• Pulling a wheelchair
• Alerting and protecting a person who is having a seizure
• Reminding a person with a mental illness to take a prescribed medication
• Calming a person with PTSD during an anxiety attack
• “performing other duties”
A Twist On the Usual
www.jacksonlewis.com8
Dogs whose sole function is to provide comfort oremotional support do not qualify as service animalsunder the ADA
The ADA only recognizes dogs as service animals
A Twist On the Usual
www.jacksonlewis.com9
Where are service animals allowed?
• Service animals must be allowed to accompany people withdisabilities in all areas of the facility where the public is normallyallowed to go
• For example, in a hospital, service animals must be allowed inpatient rooms, clinics, cafeterias, or examination rooms
• But, service animals could be excluded from operating roomswhere the animal’s presence may compromise a sterileenvironment
• For example, in a restaurant service animals must be allowed inthe front of the house
• But, service animals could be excluded from the kitchen
- Even if health codes prohibit animals on the premises
A Twist On the Usual
www.jacksonlewis.com10
There are rules
Animals must be under control
• Harnessed
• Leashed
• Tethered
• Unless these devices interfere with the service animal’s work orthe individual’s disability prevents using the device – then theindividual must control the animal through voice, signal, or othereffective controls
A Twist On the Usual
www.jacksonlewis.com11
When it is not obvious what service an animal provides, onlytwo questions may be asked:
• Is the dog a service animal required because of a disability?
• And, what work or task has the dog been trained to perform?
Employers cannot ask about the employee’s disability, requiremedical documentation, require a special identification card ortraining documents for the dog, or ask that the dogdemonstrate its ability to perform the work or task
Allergies and fear of dogs are not valid reasons for denyingaccess or refusing service to people using service animals
• For example, must move people’s work stations
A Twist On the Usual
www.jacksonlewis.com12
A person with a disability cannot be asked toremove his or her service animals from thepremises, unless:
• The dog is out of control and the handler does nottake effective action to control it, or
• The animal is not housebroken
A Twist On the Usual
www.jacksonlewis.com13
In general, employers behave as if anemployee’s outside conduct cannot result inliability for the company, as long as the conductdid not occur on work time, at a work event, oron company property
Unfortunately, that is not always the case
Outside Conduct Coming In
www.jacksonlewis.com14
Love hurts…the employer!
What if an employee begins dating a manager of a directcompetitor?
Should you be concerned about a conflict of interest?The sharing of your confidential information?
Can you terminate the employee?
Or is the relationship protected by an employee’s right toprivacy?
Outside Conduct Coming In
www.jacksonlewis.com15
An employer terminated a low-level marketing employeeafter her immediate supervisor accused her of having arelationship with a manager at a rival company
The employee was a good employee; a long-termemployee that was promoted many times during hertenure
The employee sued the employer for wrongfultermination and intentional infliction of emotional distress
The employer lost
Outside Conduct Coming In
www.jacksonlewis.com16
Members of employer’s management were aware of therelationship
One day the employee’s immediate supervisor called herinto his office and stated that the relationship created aconflict of interest
He instructed that she had to end the relationship or loseher job – he gave “a couple of days to a week” toconsider
Outside Conduct Coming In
www.jacksonlewis.com17
The next day, the supervisor called her into his officeagain and said that he had “made up her mind for her”and then he transferred her to another division, whichthe employee perceived as a termination
The court found that the employee had been wrongfullyterminated because she had a right to privacy in herromantic relationship and it could not be used againsther
It analyzed the company’s policies and found that it’sconflict of interest policy did not prohibit a romanticrelationship or friendships with employees who leave thecompany and join a competitor
Outside Conduct Coming In
www.jacksonlewis.com18
When things turn violent…
When is this a problem for the employer?
• When an employer knows that it has a trouble employee
The Seventh Circuit recently reversed a lower court’sdismissal of a case where the mother of an employeesued her daughter’s employer after a supervisor killedher daughter – the murder happened outside of work,not on company time
Outside Conduct Coming In
www.jacksonlewis.com19
The supervisor had a history of sexually harassing youngfemale subordinates. He was known to be fixated on arecent high school graduate.
The employee complained to another manager that thesupervisor would introduce her as his girlfriend, makecomments about her body, and rub himself against her.The other manager told her that she had heard othercomplaints about the supervisor and that she was alsouncomfortable with the supervisor.
The female employee finally quit because the supervisorwould not leave her alone and had begun yelling at herin public.
Outside Conduct Coming In
www.jacksonlewis.com20
The supervisor then turned his attention to another employee,who also began her employment as a teenager.
The behavior resembled previous conduct: he called theemployee his girlfriend, called her obscenities in front ofcustomers, and would throw things when yelling at her.
The supervisor attempted to control her time away from work:denied her lunch breaks if he thought she was planning to eatwith another man; calling and texting her outside of work;requiring her to come on business trips with him.
Then, the employee became pregnant (not by the supervisor).
Outside Conduct Coming In
www.jacksonlewis.com21
When she was about 7 months pregnant the supervisortold her that if she did not accompany him to his sister’swedding he would reduce her hours or fire her – invokinghis authority as a manager.
She went. After the wedding, he strangled her and rapedher corpse. Neither she nor her baby survived.
The court emphasized that management knew about thesupervisor’s conduct, with multiple women, and hadreceived multiple complaints from the deceasedemployee.
Yet, he remained employed and her supervisor.
Outside Conduct Coming In
www.jacksonlewis.com23
Zika
In 2016, parts of Miami experienced the activetransmission of the virus in people
This affected current residents of a Miami neighborhood,but also:
• Employees visiting another office in Miami for work purposes
• Employees attending a conference in Miami for work purposes
• Employees vacationing in Miami
Bringing it to Work
www.jacksonlewis.com24
What can employers do when an employee comes towork after being exposed to Zika?
Or, more broadly, when the threat of a disease or virussuch as Zika is in the United States?
Panic? Not the best idea.
Ignore the possibility that an employee, or new hire, isinfected? Also, not the best idea.
If an infected employee infects another employee theemployer could be liable.
OSHA requires that employer maintain a safe andhealthy workplace.
Bringing it In
www.jacksonlewis.com25
First, educate yourself on the facts, so to avoid therumors:
• How is the disease transmitted?
• Zika, for example, is not transmitted by the air, casual contact, orsurfaces
• Zika is transmitted through direct mosquito bites, sex, bloodtransfusions
Second, learn what the symptoms of the disease are:
• For Zika, the symptoms are fever, rash, join pain, red eyes,muscle pain or aches, headaches
• Note – this looks a lot like the flu
Bringing it In
www.jacksonlewis.com26
Third, learn how to prevent the spread of the disease:
• Insect repellents
• Clothing that covers all skin
• Eliminate standing water
• Reassign people who may be pregnant or who may becomepregnant
Fourth, think about where employees may be travelling forwork:
• Conferences
• Other offices
• Client visits
Bringing it In
www.jacksonlewis.com27
The ADA prohibits employers from making medicalinquiries or requiring medical examinations
Exception
• The ADA allows examinations/inquiries that are job related andconsistent with business necessity
• Employers are not liable when the employee poses a directthreat to the health and safety of others in the workplace
• The fear of contraction, though, does not justify an inquiry orexamination
Bringing it In
www.jacksonlewis.com28
Also consider:
The ADA prohibits discrimination based upon aperceived disability
National Origin discrimination
• Many of the contagious diseases originally come from othercountries
• Be careful when an employee travels to another country – thatmay have infected persons – to visit family
Race discrimination
FMLA
Bringing it In
www.jacksonlewis.com30
Bed Bugs
It is not uncommon to find bed bugs in the workplace
Bed bugs are small and they hide in places like clothing,personal belongings, and shoes
That means that an employee can bring bed bugs towork and transmit them to other employees – they feedon human and animal blood (watch out for those serviceanimals!)
Mature bed bugs can survive for at least a year without a“blood meal”
Bringing it In
www.jacksonlewis.com31
Bed bugs can be identified:
• Reddish brown
• Cause itchy welts in about 70% of the people whohave been bitten
• Welts typically occur in groups on exposed skin, butthey look like other bug bites
Bringing it In
www.jacksonlewis.com32
What can employers do?
Send an infected employee home
Remember that this may be a sensitive issue for theemployee – confidentiality will be important
Train staff to know what bed bugs look like and how toidentify them
If found, bring in a professional exterminator
In the meantime, keep employees – and others – awayfrom infected area
Bringing it In
www.jacksonlewis.com33
Consider implementing a bed bug policy
• Especially if in an area where bed bugs have been a problem
Include
• Reason for the policy – providing a safe and healthy work place
• Precautionary measures that may be taken:
- Educating employees about bed bugs and how they are spread
- Identify person to whom employees can report a case of bed bugs andnote that the communication will remain confidential
- Note that the company may engage outside professionals to inspect theworkplace periodically
- Refer to leave policies available for infected employees or those whoare afraid to come to the office
Bringing it In
www.jacksonlewis.com34
Potential legal claims associated with bed bugs:
• An employee who is exposed to bed bugs at work may bring aclaim of negligence
• Employees may claim that they suffered emotional distress bybeing exposed at work and bringing the bugs into their home asa result
• Economic damages related to an infestation that starts at workand ends up in an employee’s home
• Worker’s compensation claims - a company that knows aboutbed bugs in the workplace and does nothing to correct it
• Discrimination
Bringing it In
www.jacksonlewis.com35
Illinois Biometric Information Privacy Act
Passed into law in 2008
In the past year, at least 12 class actions havebeen filed against employers in Illinois state andfederal court
These actions seek damages related toviolations of the Act
Going High Tech
www.jacksonlewis.com36
With advances in technology, employers have started usingbiometric data in the workplace
What is covered by the Act?
• Biometric identifiers include a retina or iris scan, fingerprint,voiceprint, or scan of hand or face geometry
• Biometric identifiers do not include writing samples, writtensignatures, photographs, human biological samples used for validscientific testing or screening, demographic data, tattoodescriptions, or physical descriptions such as height, weight, haircolor, or eye color
What is biometric data in the workplace?
• Fingerprint scans as a part of time-management software
• Facial recognition scans
• Retina scans to gain access to secured facilities
Going High Tech
www.jacksonlewis.com37
What does the Act require?
• Companies that collect and use biometric information must firstobtain a written release prior to collecting such data
• Companies must adhere to requirements regarding theprotection, use, and destruction of biometric information
Think about employees who may be using the newiPhone for work purposes – it includes facial recognitionsoftware
This a hot area for plaintiff’s attorneys, so if you use anybiometric data in the workplace, you should consult withan attorney who specializes in this area
Going High Tech
www.jacksonlewis.com38
Bring Your Own Devices to Work
Employers have instituted “bring you own device”policies, by which employees use personal cell phone,tablets, and computers to access the employer’s network
• i.e. having your work email on your phone
Similar risks exist for working remotely
• Working from home using a company laptop
• Using a personal laptop to connect to the company serve
Going High Tech
www.jacksonlewis.com39
Potential risks include:
• HIPAA and state data security requirements – requirements relatedto the protection of information
- HR personnel, for example, have access to employee’s health benefitsinformation, FMLA forms, medical information
• E-Discovery issues
- If emails, text messages, voice messages, etc. become subject todiscovery in litigation, it can be difficult to obtain the information from anemployee’s personal device
• Wage and hour issues
- When employees can access work anywhere, they may work off-the-clock
- It is also difficult to defend against wage and hour claims when anemployee claims that he or she worked at home checking emails,reviewing documents, etc.
Going High Tech
www.jacksonlewis.com40
Potential risks include
• Traditional workplace issues
- Workplace harassment
Text messages
- Discrimination
- Privacy issues
- Employers have a difficult time monitoring and prohibiting thisconduct when it is not happening during working hours, on acompany device, or in the office
• Record retention and destruction of documents
Going High Tech
www.jacksonlewis.com41
Defamation
Fraudulent Misrepresentation
Tortious Inference with Prospective BusinessRelations
Wage Assignments
Child Support
Paid Sick Leave & Terminations
Retaliatory Discharged based on public policyissues
Traditional Legal Claims in the EmploymentContext