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The Labor & Employment Report

“Wal-Mart Door Greeter” = Old?

Posted in Employment Discrimination, Laws & Regulations, Litigation

So, I know there are a lot of jokes about retired folks becoming a Wal-Mart greeter, even though I’m sure Wal-Mart would say that their greeters can be any age.  But this joke has actually taken on legal significance – the term, “Wal-Mart door greeter” now apparently equates with calling someone “old.”  At least it did in the case of Davis v. Progressive Waste Solutions of Louisiana, Inc.

In this case, a truck driver was terminated, ostensibly for missing five days of work.  The driver sued his employer, claiming that the termination was based on his age, 59 years old, in addition to some other claims.  The employers asked the court for summary judgment, arguing that the driver’s claims had no merit as a matter of law and should be dismissed.  The court, however, disagreed, finding that the driver had offered direct evidence of age discrimination – two comments by the Site Supervisor:

  • Either during or immediately after the termination, the Site Supervisor told the driver, “[G]o get a job as a Wal-Mart door greeter.”
  • Another employee reported that the Site Supervisor said the following day, “I’m the one that got rid of the old bastard.”

Well, that second comment is clearly ageist – there’s no question about it when you use the word “old.”  But “Wal-Mart door greeter”?  Huh.  Well, I guess that now one of my crazy teenagers is in college, I feel like a Wal-Mart greeter.(!!!)

“Funny Walk” Is a Disability? That’s Just Screwy.

Posted in Employment Discrimination, Laws & Regulations, Litigation

I know that the amendments to the Americans with Disabilities Act (ADAAA) were intended to expand coverage of the Act, but sometimes I think the extent of the expansion is just ridiculous.  This was highlighted for me in a recent case, EEOC v. Staffmark Investment LLC, in which the court found that an employee was covered by the ADAAA because a supervisor thought she had a “funny walk.”  Seriously?

This case involved an employee with a temporary staffing agency, Staffmark, who was placed at a company that did work for Sony Electronics.  Her job was to check for loose screws on television sets.  (No, really.  I am not kidding.)  According to Sony, she was supposed to walk around the table on which the tv set was placed, loosening and then tightening all the screws to make sure the screws were tight.  On her first day of work, a supervisor had to counsel her twice about the proper way to check the screws.  ( I know – how hard could this really be?)  One supervisor noticed she had difficulty walking, and another thought she had a “funny walk,” but neither of them thought it affected her ability to do the job.  No one knew that she was an amputee with a prosthetic leg – she wore long pants and did not use a cane.  The following day, Sony decided to remove her from the project.  According to Staffmark, Sony was  afraid she would be knocked down, and she was sent home at Sony’s request “due to her limping.”

The Equal Employment Opportunity Commission sued Staffmark and Sony for disability discrimination on behalf of the employee.  Staffmark settled.  Sony filed a motion for summary judgment, asking the court to dismiss the claims against it because, Sony argued, the employee was not disabled within the meaning of the ADAAA.  Under the ADAAA, an employee is “disabled” if: (1) she has a current physical or mental impairment that substantially limits a major life activity; (2) she has a “record of” such an impairment; or (3) she is “regarded as” having such an impairment.  This last category was the one at issue, and Sony argued that it could not have regarded her as having an impairment because it did not know that she actually had an amputated leg.  Therefore, if it didn’t regard her as having substantially limiting impairment, she wasn’t disabled under the ADAAA.  Well that seems to make sense, doesn’t it?

The court, however, rejected Sony’s argument.  Prior to the amendments to the ADAAA, the employer had to regard the employee as being substantially limited in a major life activity in order to trigger the “regarded as” prong of the disability definition.  But now, as the court said, “Under the ADAAA, an individual need not prove that the employer had knowledge of an actual disability if she can demonstrate that she was subjected to a prohibited adverse employment because she was ‘regarded as’ having an actual or perceived physical or mental impairment, whether or not that impairment substantially limits or is perceived to limit, a major life activity.”  The court’s ruling simply follows the same position taken by the EEOC in its regulations implementing the ADAAA.  In this case, the employee did actually have a disability, but the court’s (and presumably the EEOC’s) reasoning would still apply even if she didn’t, and she just had a peculiar gait.  In other words, the employer doesn’t have to think an employee has a substantially limiting impairment to trigger the “regarded as” definition.  Any impairment will do.  At all.  Even something minor.  Even if no major life activity is affected.

So who has a screw loose?  The court, EEOC, or Congress?  Regardless, the employer is, well, screwed.

“Maxiflex” Schedule May Be Reasonable Accommodation

Posted in Laws & Regulations, Reasonable Accommodation

This case caught my eye because I’ve never seen the term “maxiflex schedule” before.  It sounds so…well, extensive and overwhelming.  I’m sure that’s what the employer in Solomon v. Vilsack  thought when it denied the employee’s requested accommodation for this type of schedule, which  involves substantial flexibility in working hours.  The trial court stated that a maxiflex schedule was unreasonable as a matter of law under the Rehabilitation Act (which is the disability law that covers federal employees, and which applies the same legal standards as the Americans with Disabilities Act).  Sadly for the employer, however, the U.S. Court of Appeals for the D.C. Circuit disagreed with the trial court, stating that whether a maxiflex schedule is reasonable or unreasonable requires a case by case analysis.

In this case, an employee suffered from depression, which intensified.  Because of her worsening condition, the employee couldn’t maintain her normal work schedule.  She managed to complete all of her work, however, by taking leave during her normal workday and then working additional unscheduled hours.  She also performed much of her work from home.  Her supervisor was aware that the employee was working these irregular hours.  The employee’s work performance was not an issue.

After several months of this, the employee emailed her supervisor to apologize for her erratic leave and explain that she was being treated for depression.  The supervisor requested medical documentation of any need for accommodation.  The employee provided a doctor’s note requesting a “flexible work schedule” like the one that the employee had already been working.  Her request for accommodation was rejected, and she was no longer permitted to work the same unpredictable schedule that she had been working.  She subsequently requested to telecommute part-time, but this request was also denied.  Believing that she had no other options, the employee retired on permanent disability.  She then sued for denial of her request for reasonable accommodation, in addition to some other claims.

The trial court found that a maxiflex schedule could never be reasonable, as a matter of law, and dismissed the reasonable accommodation claim.  On appeal, however, the D.C. Circuit reversed the trial court’s ruling.  Observing that whether any accommodation is reasonable is a “contextual and fact-specific inquiry,” the D.C. Circuit went on to state that, “Technological advances and the evolving nature of the workplace” have increased the types of accommodations available.  Thus, the D.C. Circuit concluded, “it is rare that any particular type of accommodation will be categorically unreasonable as a matter of law.”  With regard to the maxiflex schedule, the D.C. Circuit found that it should have been assessed to see if it would have enabled the employee to perform her essential job functions without undue hardship to the employer.

So the lesson for employers is don’t immediately reject an accommodations request out of hand, no matter how ridiculous it may appear.  Instead, go through the interactive process of discussing and assessing the requested accommodation and any potential alternatives to determine if the possible accommodations are reasonable or not.  In particular, be open-minded about technologically driven accommodations – because courts certainly are trending in that direction!

Don’t Just Drop Those FMLA Notices in the Mailbox!

Posted in Employee Leave (FMLA and ADA), Laws & Regulations, Litigation

As (most) FMLA-covered employers know, once an employee requests Family and Medical Leave Act Leave, there are certain notices that are required.  You have to provide the employee with an Eligibility Notice and a Rights and Responsibilities Notice within five business days of the request for leave, and once the employee has submitted enough information so you can determine if the leave is FMLA-qualifying, you must provide a Designation Notice within five business days.  But how are these notices given?  And more importantly, can you prove that they were?  This was the issue in a recent case, Lupyan v. Corinthian Colleges, Inc.

The FMLA regulations state that the Eligibility Notice  can be oral or in writing.  As a practical matter, we suggest that you ALWAYS give the notice in writing, using the DOL’s model form. As for the Rights and Responsibilities Notice  and the Designation Notice , they must be in writing.  Again, the DOL has prepared model forms for each (the Eligibility Notice and Rights and Responsibilities Notice are the same form), and we suggest you use them.  The regulations set out very specific items of information that must be included in each notice.  By using the DOL’s forms, there will be no dispute that the requisite items of information have been covered.  But this leads to the next question – how do you actually deliver these written notices?

Oddly, the regulations don’t specify the means of delivery for the Eligibility and Designation Notices, but they do for the Rights and Responsibility Notice.  They state that, if leave has already begun, the Rights and Responsibilities Notice “should be mailed to employee’s address of record.”  The regulations also provide that it “may be distributed electronically.”  Because the regulations don’t talk about delivery of the other two Notices, we can presume that these methods are also acceptable for those documents.  So most employers will drop the notices in the mailbox, and the U.S. Postal Service takes it from there.  And that is fully compliant with the regulations.

But the issue that came up in the Lupyan case is whether the employee actually received the notices.  Under the regulations, the failure to provide notice may be viewed as an interference with an employee’s FMLA rights – and this can subject the employer to a wide range of damages, including back pay and benefits, other actual monetary losses, and reinstatement.

The employer argued that the “mailbox rule” should apply – this is a longstanding rule that presumes a properly-addressed and mailed letter was received by the recipient.  In this case, the HR Coordinator testified that she prepared the letter designating the employee’s leave as FMLA-covered and placed it in the outgoing mail bin.  The problem here is that the presumption fails because the employee testified that she never received the letter, and therefore never knew she was on FMLA leave or what was required of her under FMLA.  Had she known, she argued, she would have handled her leave differently and, therefore, would not have been terminated for failing to return at the end of her FMLA leave entitlement.

The U.S. Court of Appeals for the Third Circuit observed that there was no evidence that the employee had received the letter – the employer had not used registered or certified mail or use any other “now common” tracking methods.  The Court stated, “In the age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing something as important as a legally mandated notice.”

What this case emphasizes is that wise employers might wish to take extra steps to be able to prove that the required notices were actually delivered.  If the notices are sent by mail, you could require a signature receipt (i.e. certified mail) or use a tracking number for delivery.  If they are sent by e-mail, use some sort of electronic receipt.


Don’t Let the Harasser Back – Even as a Volunteer

Posted in Employment Discrimination, Litigation

This one seems like a no-brainer.  If you determine that an employee is behaving badly and you terminate him, you shouldn’t allow him back into the workplace.  But that is what happened in the case of Frias v. Spencer.

A Hispanic employee complained that an African-American manager yelled at her.  No action was taken by her African-American supervisors.  According to the employee, the manager then made her job performance difficult by yelling at her and criticizing her.  After other employees also complained of the manager’s conduct, the employer conducted an investigation and ended up issuing a warning.  The manager subsequently acted inappropriately to a supervisor, and the decision was made to terminate him.  At this time, the employer also hired a security guard (which seems to speak volumes…)  But the termination decision was then reduced to a suspension.

When the employee heard the manager was going to be allowed to return, she sent a letter to management, expressing concern about her safety.  The decision to terminate was then reinstated.

Five months later, however, the employee saw the manager back on the premises.  He was there as a volunteer. (?!!)  The employee then left work and did not return.  She filed an internal EEO complaint, explaining that she had experienced a hostile work environment, and the manager’s return was “the last harassment [she] could humanly, emotionally and physically endure.”  She further said that she had repeatedly told her supervisors that she was scared of the manager and did not want him to be around her workplace.

The employee also filed suit, and the employer asked the court to dismiss the claims, arguing that permitting the manager to return as a volunteer was not any kind of employment action on which a claim of discrimination can be based.  But there doesn’t need to be an employment action in a claim for a hostile environment – where the working environment itself is so objectively and subjectively hostile that is creates an abusive working environment.  Under the law, the employer is liable for failing to remedy or prevent a hostile work environment.

In this case, the court found that there was sufficient evidence to send the case to trial for a jury to determine if a hostile work environment existed.  The court found that the employee had presented many examples of how she felt threatened or harassed by the manager – sufficient to show a subjectively hostile environment.  Of particular note, the manager was allowed to return to the workplace even after his termination – which could allow him to continue his negative interactions with others, including the employee.

What the jury will decide is yet to be seen.  But as a practical matter, the employer is left with a difficult situation – trying to explain why it found the manager’s conduct sufficiently concerning to warrant termination, but then allowing him back into the workplace.  Really, if his conduct towards others was bad enough to result in his firing (and in the hiring of a security guard!), there doesn’t appear to be any rational basis for allowing him back at all.

Eight S&R Attorneys Named to “Best Lawyers©” List

Posted in Uncategorized

It’s fun to be able to toot your own horn. Eight – yes, EIGHT – of our attorneys have AGAIN been listed in The Best Lawyers in America© 2015, the oldest and most-respected peer review publication in the legal field. And our own Gary L. Simpler has been named Best Lawyers’ 2015 Labor Law -Management “Lawyer of the Year” in Baltimore!

Selection to The Best Lawyers in America  is based on an extensive peer-review survey of more than five and half million top attorneys. Our honorees this year are:

Of particular note, Steve has been recognized since 1983, the year that the first Best Lawyers list was created.

New Executive Order = New Burdens for Government Contractors

Posted in Affirmative Action, Government Contractors, Laws & Regulations

On July 31, 2014, the President issued an Executive Order entitled, “Fair Pay and Safe Workplaces,” which will make an employer’s record of compliance with federal and state labor laws a criterion for successful bidding on government contracts and subcontracts exceeding $500,000.  In a Fact Sheet accompanying the Executive Order, the White House described it as an effort to prevent contractors who obey the law from being underbid by unscrupulous contractors.  Even for scrupulous contractors, however, the Executive Order will add new burdens.

Reporting of Labor Law Violations.  To permit the government to assess a contractor’s record of compliance, the regulation requires covered contractors to report “administrative merits determinations,” arbitration decisions and court decisions involving certain federal labor laws or their state law counterparts for the three-year period preceding the contract bid. Contractors are required to obtain and report this information for many of their subcontractors as well.  Serious, repeated, willful or pervasive violations of labor law will disqualify a contractor from a bid, under criteria to be set forth by the Federal Acquisition Regulatory Council.  After a federal contract or subcontract has been awarded, the contractor must update the list of violations every six months, for itself and its subcontractors.

The term, “administrative merits determination,” does not appear in federal law and it not clear whether or not it includes EEOC cause findings (we think it does not).  Because settlements do not need to be reported, the Executive Order also puts additional pressure on employers to settle disputes.  Indeed, that is an announced purpose of the Executive Order.  The White House Fact Sheet states, “The new process is structured to encourage companies to settle existing disputes, like paying back wages.”

The 14 federal laws listed in the regulation are The Fair Labor Standards Act, The Occupational Safety and Health Act, The Migrant and Seasonal Agricultural Worker Protection Act, the National Labor Relations Act, the Davis-Bacon Act, The Service Contract Act, Executive Order 11246 (equal employment opportunity and affirmative action plans for government contractors), Section 503 of the Rehabilitation Act, The Vietnam Era Veterans Adjustment Assistance Act, the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act, and Executive Order 13658 (establishing a minimum wage for contractors).   Notably missing from the list are immigration laws.

Anti-arbitration Provision.  For contracts and subcontracts in excess of one million dollars (apart from commercial items or off-the-shelf items) the Executive Order bars predispute arbitration agreements covering discrimination claims under Title VII and torts arising out of assault and harassment.  This ban on arbitration does not apply to collective bargaining agreements, agreements to arbitrate voluntarily reached after the dispute arises, or arbitration agreements entered into before the contractor bids on a federal contract (except if the contractor has the right to change the arbitration agreement).

Pay Disclosures.  The Executive Order requires contractors and subcontractors to provide employees, in each pay period, a statement of the employee’s hours worked, overtime hours, pay and additions to and deductions from pay.  This requirement appears to be largely duplicative, since state wage payment and collection laws normally require employers to issue pay stubs.  Under the Executive Order, the employer need not provide hours worked to employees who are exempt from overtime, if it informs them of their overtime exempt status.  If an individual is working as an independent contractor, the contractor or subcontractor must inform that individual in writing of his status.

The Executive Order is not effective immediately.  It will become effective when final implementation rules are issued by the Federal Acquisition Regulatory Council, which is expected in 2016.

If previous experience is a guide, implementation of the Executive Order is likely to be problematic.  Currently, various agencies each focus on enforcement of a particular labor law.  Even with specialized enforcement, the government has trouble completing timely and competent investigations of particular claims.  The investigations often suffer from inexperienced investigators, changing legal standards, and political motivations.  The Executive Order ups the ante, by putting an employer’s ability to bid on government contracts in the hands of agency staffers who will be expected to assess the quality of the employer’s compliance with 14 different laws, and their state law counterparts, over a three year period.  Even if the government can properly administer the Executive Order it will impose, at the least, additional data collection and reporting requirements and another level of bureaucracy.

Is There Attorney-Client Privilege in a Facebook Post?

Posted in Uncategorized

Sometimes you read a case, and you just have to laugh.  Kaiser v. Gallup, Inc. was one of those cases for me.

After being terminated from employment, the plaintiff sued her employer for discrimination.  During the case proceedings, the employer discovered that the plaintiff had communicated with her cousin, who was an attorney, about events leading up to and occurring around the time of the termination.  The employer also discovered that the plaintiff had told others about her communications with her cousin. According to the judge, “These communications occurred, in part, through postings on Plaintiff’s Facebook page.”  (?!!!)  When the employer requested copies of these communications, the plaintiff refused to produce them on the grounds that they were protected by the attorney-client privilege.  (Apparently, the cousin had represented the plaintiff in her claim for unemployment benefits.)

So, to be protected by the attorney-client privilege, the communication must be made:

  • In confidence
  • In connection with the provision of legal services
  • To an attorney
  • In the context of an attorney-client relationship

The employer then asked the judge to compel the plaintiff to turn over the communications, arguing that (1) there was no evidence that those communications were made in the context of an attorney-client relationship, and (2) even if there were such a relationship, the plaintiff waived the privilege by disclosing the communications to others. (From watching various legal shows – my current favorite is “The Good Wife” – most of us know that the privilege is waived if the communication is shared with a third party.  I think they covered that in law school as well…)

In this case, the judge found that there was no evidence as to the scope of the plaintiff’s attorney-client relationship with her cousin and no information from which the judge could determine if the communications were being made in the connection with providing legal services in the context of an attorney-client relationship.  So the judge ordered the plaintiff to produce the communications.

Sadly, the judge didn’t reach the really entertaining Facebook postings issue.  It’s a little unclear what the judge meant in saying,  ”These communications occurred, in part, through postings on Plaintiff’s Facebook page.”  Did the actual conversation between the plaintiff and her cousin take place on Facebook?  If so, were the postings visible to the plaintiff’s Facebook friends?  Or did the judge mean that the plaintiff talked about her conversations with her cousin in Facebook postings with her Facebook friends?  Either way, it seems like a no-brainer – putting the conversation on Facebook or talking about the “privileged” conversation on Facebook means that there is no confidential communication!  And, therefore, there is no attorney-client privilege!

Lesson for the day – don’t use Facebook to talk to your attorney and don’t talk about conversations with your attorney on Facebook!  (I think even my crazy teenagers would get that!)

Employers Get to Set the Schedule – Really!

Posted in Employment Discrimination, Laws & Regulations, Litigation

Sometimes it feels like employees have so many rights, they get to choose what they will do and when they will do it.  This may be true to some extent if the employee is entitled to a schedule adjustment as a reasonable accommodation for medical needs (American with Disabilities Act) or religious needs (Title VII), or if they need a reduced or intermittent work schedule for medical/military family reasons (Family and Medical Leave Act).   But in the normal course of events, it is actually the employer’s decision to determine what needs to be done and on what schedule – and that these determinations can change, depending on business needs.  A recent case, Huang v. Continental Casualty Co., provides a reminder to employers that you are, in fact, in charge (well, most of the time, anyway).

After working eight years for the employer, a system and software engineer was reassigned to a new team and given new duties, which included once-a-month pager duty on a weekend.  The engineer (and the other members of his team) would have to carry a pager and be available 24 hours a day during the assigned monthly weekend on duty.  The engineer refused to work weekends because of family reasons, even though his supervisor and Human Resources told him it was a work requirement and that he could be fired for his refusal.  He offered to come into the office on Sundays instead of Mondays, but would not be on pager duty otherwise during the weekend.  The engineer was subsequently fired for his continuing refusal of weekend pager duty.

The engineer then sued, alleging race and national origin discrimination, along with retaliation.  He argued that he was meeting the employer’s legitimate job expectations because: (1) he offered a suitable alternative to the pager duty requirement by offering to come in on Sundays rather than Mondays; (2) he had a good reason to refuse pager duty – he wanted to spend more time with his family; and (3) the pager duty was not legitimate because it wasn’t in his job description.

The U.S. Court of Appeals for the 7th Circuit rejected all of his arguments, however.  First, the Court noted that “employers are entitled to determine their scheduling needs.”  The offer to work Sundays did not meet the employer’s need to have an employee available 24 hours a day the whole weekend long.  Second, although the Court observed that “although a longing to spend more time with family is understandable” (the Court has never met my teenagers!), it went on to state that this longing “does not undermine the legitimacy of a work schedule that cuts into family time.”  Basically, his “preference for home life” could not trump the employer’s work expectations.  Finally, the Court noted that pager duty did not need to be memorialized in a job description in order to be a valid employment expectation.

Bottom line – an employee’s personal preference, or even their family needs (e.g. childcare, school, etc.) should not control the schedule that the employer sets.  As a matter of employee morale, an employer might try to accommodate the personal scheduling preferences of employees, although there is no legal requirement to do so.  But if the employer determines that a particular work schedule is required by business needs, employees must comply with that requirement.