Header graphic for print

The Labor & Employment Report

Shawe Rosenthal and Seven Attorneys Recognized by Super Lawyers©

Posted in Uncategorized

We are delighted to announce that our firm and SEVEN individual attorneys have been recognized by Super Lawyers©, which is a national rating service of outstanding lawyers in multiple practice areas. Shawe Rosenthal was named the top mid-sized employment firm in Maryland in Super Lawyers’ recently-published 2014 Business Edition, which also recognized our 2014 attorney honorees in the areas of Employment & Labor and Employment Litigation: Defense. Attorneys are selected for recognition based on independent research, peer nominations, and peer evaluations. The honorees are deemed to be in the top 5% of practitioners in the state. Our 2014 honorees in the area of Employment & Labor are:

In addition, two of our attorneys were recognized in the area of Employment Litigation: Defense:

Furthermore, Super Lawyers has just issued its 2015 list of honorees. Fiona W. Ong joins the list above of our attorneys recognized by Super Lawyers, in the area of Employment & Labor.

 

Tardy While Working From Home?!!

Posted in Laws & Regulations, Litigation, Reasonable Accommodation

As an employer, you might think you’ve heard all the excuses why an employee is late for work.  But what if they’re working from home?  Seriously, how is that even possible?  Well, that’s exactly what happened in Taylor-Novotny v. Health Alliance Medical Plans, Inc.

In this case, an employee had tardiness and attendance issues from the beginning of her employment in late 2005.  She was verbally counseled repeatedly, and placed on a performance plan.  Her start time was pushed back twice to make it easier to arrive on time.  These issues were noted in every performance review.  But the issues continued.

In May 2008, the employee was diagnosed with multiple sclerosis, and she began working at home several days a week at the recommendation of her doctor.  Under her “Work From Home” agreement, she agreed to comply with all Company policies, and to let the Company know if she were ill,  had a doctor’s appointment, or had some other interference with her work.

The employee’s tardiness issues continued, and were raised in her performance review and subject to counseling.  In March 2010, her managers and the VP of Human Resources met with her to discuss her continuing tardiness issues.  She was reminded that she must contact her manager “every time she will be late, her expected arrival time, and the reason for the lateness, regardless of whether she is scheduled in the office or at home.”  (Emphasis added).

Despite this instruction, the employee was tardy twice in the next two weeks.  Both times she failed to notify her manager.  As a result, she received a written warning.  Her tardiness was also noted in her next performance review.  Then in May 2010, the employee received a final written warning because she was tardy on eight occasions in a three week period, and failed to notify her manager every time.  The employee was counseled again in June for two other instances of unreported tardiness.

Finally after two more incidents in which she failed to notify her manager of tardiness (while working at home, by the way), the employee was terminated for her continued tardiness and failure to accurately report her work time (because what she recorded was different than what her computer log on indicated), in addition to poor work performance and falsification of work documents (she falsified records of business calls she was supposed to have made, as well as reporting logs on her work efforts).  She then sued the Company, claiming violations of the Americans with Disabilities Act, among other things.  The district court threw out her lawsuit on summary judgment, and she appealed to the U.S. Court of Appeals for the 7th Circuit.

As the 7th Circuit noted, the ADA protects “qualified” individuals with a disability, meaning that they can perform the essential functions of the job with or without reasonable accommodation.  The employee argued that regular attendance and punctuality were not essential for her position, as evidenced by the fact that she was permitted to work from home.  The 7th Circuit disagreed with her, observing that “[a]n employer is generally permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance.  A plaintiff whose disability prevents her from coming to work regularly cannot perform the essential functions of her job, and thus cannot be a qualified individual for ADA purposes.”  In this case, allowing the employee to work from home did not mean that punctuality and attendance are not essential functions; she still needed to comply with those requirements.

And really, when you’re working at home, it should not be hard to roll out of bed and start work on time.  Even in your PJs!

The One-Armed Security Guard and the ADA

Posted in Employment Discrimination, Laws & Regulations, Litigation

“Jury Finds In Favor Of EEOC That One-Armed Security Guard Was Fired Because Of His Disability.”  Wow, that’s quite a headline, isn’t it?  A real eye-catcher.  But that was the caption for a recent press release from the EEOC.

In this case, a one-armed man applied for a job as an “unarmed security guard” with a security services company.  (OK, the irony just kills me!)  He had a prosthetic arm that the hiring managers assumed was functional.  He was assigned to patrol a residential community, and was told to call the police if he observed anything suspicious.  The employee understood that there may be times when he had to follow or confront someone suspicious, and may even have been required to physically detain them.

The employee conducted his first shift at the residential community without wearing the prosthetic.  The president of the residential community called the security company and complained that the company “was a joke for sending them a one (1) arm Security Officer.”  The Company President then called the employee, who informed him that the prosthetic was just cosmetic.  At that point, the Company President decided the employee could not perform the job duties for the residential community, and the Company could not place him in any other position.  So the employee was effectively terminated.

The employee filed a charge of discrimination with the EEOC, and the EEOC then brought suit against the security company on his behalf.  A jury found that the security company had discriminated against the employee because of his missing arm, in violation of the Americans with Disabilities Act.  In order to be protected by the ADA, an individual with a disability must be able to perform the essential functions of his job, with or without a reasonable accommodation.  Therefore, the jury must have concluded that the employee was capable of performing the essential job functions – but what those functions were is not clear from the press release, nor is it clear how he would have accomplished them.  (Earlier in the case, the EEOC argued that he could have detained suspects by asking them to wait for the police to arrive (?!!!) or spraying them with pepper spray.  Uh huh.).

The EEOC argued at trial that the company had relied on “discriminatory customer preferences and stereotypes about what individual with disabilities can and cannot do” in violation of the ADA.  Well, I guess I would have violated the ADA as well, since I do think two working arms is pretty essential for a security guard!  Even an unarmed one.

FMLA = “Fraudulent Medical Leave Act”?!!

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

This case caught my eye because I love it when aggravated people come up with new and strikingly appropriate interpretations for acronyms – particularly in the employment law area.  For example, instead of the Americans with Disabilities Act Amendments Act, ADAAA can stand for “ADAAAGH!”  or “Assume Disability, Always Attempt Accommodation!”  As for the Family and Medical Leave Act – FMLA – I’ve heard it called the “Friday-Monday Leave Act,” which is sadly apropos for a law that is so frequently abused by bad employees.  Along those lines, I was tickled by a recent reference to the “Fraudulent Medical Leave Act” in the case of Henson v. U.S. Foodservice, Inc.

In this case, a warehouse employee had requested and been granted FMLA leave on a number of different occasions, returning to work after each instance.  In August 2010, the employee was loading a pallet.  A supervisor noticed the load on the pallet was leaning precariously because the bottom of the pallet was crushed.  The supervisor directed the employee to rebuild the pallet.  Instead, the employee simply replaced the broken pallet with a new one, without the supervisor’s permission.  The next day, the supervisor and the Director of Operations met with the employee and his Union shop steward to discuss the employee’s failure to follow the supervisor’s instruction.  The employee was not remorseful, insisting that his way was better.  He also admitted that he just wanted to get home.  The employee was subsequently terminated for insubordination and lack of remorse.

The employee then sued his employer, claiming that the termination was in retaliation for his use of FMLA leave.  In support of his claim, the employee testified that he heard the Director of Operations tell other employees that they were working more because of their “FMLA buddies” and encourage them to call workers on FMLA leave to tell them to return to work.  The employee also said that he heard his supervisor refer to the FMLA as the “Fraudulent Medical Leave Act.”  The federal district court, however, threw out the employee’s claim of FMLA retaliation, finding that the employer had a legitimate reason for termination.

The employee appealed the dismissal of his claim to the U.S. Court of Appeals for the Third Circuit.  However, that court also rejected his claim, finding that the managers’ statements were not directly related to the decision to  terminate the employee.  Thus, there was no evidence that the employee’s use of FMLA was linked to his termination.  The court further noted that the employee had used FMLA leave numerous times before without any negative consequence.  And the court found that, in any case, the employer had a legitimate, non-discriminatory reason for terminating him – his insubordination and lack of remorse.

So in this case, FMLA – Fortunately, Managers Lawfully Acted!

NLRB Finds Certain Facebook Posts Unprotected – Finally!

Posted in Labor Law & NLRB, Social Media

Once upon a time, the National Labor Relations Board actually found Facebook posts by employees to be unprotected by the National Labor Relations Act…  A fairy tale for employers, you say?  No really, it actually happened, in the case of Richmond District Neighborhood Center.

Over the past several years, it seems that the Board will find almost any kind of employee speech – especially in social media – to be protected by the Act.  Under past Board rulings, employees can seemingly say the most outrageously derogatory things about co-workers and management and drop four-letter words all over the place – all without consequence.  So it’s nice to know that even the Board thinks that there are lines that cannot be crossed.

In this case, two unhappy employees of an afterschool program had a Facebook conversation about their employment.  This is considered concerted activity that is therefore protected by the Act.  So when another employee took a screenshot of the conversation to the employer, and the employer decided not to rehire the employees for the coming school year, one of the employees filed a charge with the Board claiming that his rights under the Act had been violated.

Concerted activity, however, can lose the protection of the Act if its is sufficiently egregious or if it makes the employee unfit for further employment.  That is what the Board determined happened here.  Specifically, the Board found that the employees made statements that:

  • they would refuse to obtain required permission before organizing youth activities (“ordering s***, having crazy events at the [center] all the time. i don’t want to ask permission…”, “Let’s do some cool s***, and let them figure out the money”, “field trips all the time to wherever the f*** we want!”)
  • they would disregard specific school-district rules (“play music loud”, ‘teach the kids how to graffiti up the walls”)
  • they would undermine leadership (“we’ll take advantage”, “I would hate to be the person takin your old job”)
  • they would neglect their duties (“I AINT GOBE NEVER BE THERE”)
  • they would jeopardize the future of the youth center (“they start loosn kids i aint helpn”, “Let’s f*** it up”)

[NOTE: all misspellings are original!]

The Board stated: “We find the pervasive advocacy of insubordination in the Facebook post, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render [the employees] unfit for further service.”  The Board found that, given the “magnitude and detail” of the planned insubordinate acts, a reasonable employer would refuse to take the risk that such plans would be carried out if these individuals continued to be employed.

So for once, the employer lived happily ever after.  The End.

Ebola in the Workplace – Practical Suggestions

Posted in Employee Leave (FMLA and ADA), Employment Discrimination, HR Compliance, Laws & Regulations, Workplace Trends

Our last two blog posts talked about Ebola facts and the legal background that will frame any employer actions taken to address Ebola in the workplace.  This post will offer some practical guidance on what options employers might consider. The bottom line question of interest to employers is what can they do with regard to protecting the workplace from Ebola.  There is no one size fits all answer.  The right choice for each employer will depend on the type of workplace, the job the employee performs, and the employer’s tolerance for legal risks (to name a few).   The following represent several options based on the CDC’s and other guidances:

Employee Education.  There is widespread misunderstanding of how Ebola is transmitted, and where the outbreaks are occurring.  Employees should be educated as to the facts, which should calm some of the fears in the workplace.

21-Day Leave.  Regarding Ebola policies/procedures, one size does not fit everyone.  A blanket policy of requiring all employees traveling to the areas of outbreak to remain out of work for 21 days following their return to the U.S., either with or without pay, and to obtain a medical examination releasing them to return to work at the end of the period would likely be deemed unnecessary under the CDC guidelines, at least with regard to those who were not exposed to the Ebola virus.  On the other hand, it may be appropriate for workplaces such as hospitals and nursing homes, where the nature of the work and risk of harm to the populations served requires a more stringent standard.  Employers that choose this rule should be able to justify the business necessity of adopting it.  In addition, placing the employee on paid leave will minimize the risk of liability that might be found under federal anti-discrimination laws.  In order to further any risk involved in this approach, employers can also choose not to require a medical examination for employees who were not exposed to Ebola during their travels.

Combined Leave and Return to Work.  A more nuanced approach is to require employees who have been exposed to the virus to remain out of work for the 21 days, either with or without pay, but to permit employees not known to have been exposed to the virus in their travels to an area of outbreak, to return to work, subject to self-monitoring.  Obviously this contemplates that the employee would know whether he/she was exposed and would provide an honest and educated answer.  Depending upon the circumstances, employers may further choose to require such employees to report on self-monitoring, or check the temperatures of the employees during the 21-day period.

Another approach, in keeping with the CDC guidelines, is to require employees who have been exposed to Ebola to be assessed by their doctor, in consultation with public health authorities, in order to determine their risk level and what actions are appropriate.  Whether the employee would be permitted to return to work, with self-monitoring and daily reporting, would depend on the doctor’s assessment.  Employees not exposed to Ebola would be permitted to return to work with self-monitoring (and daily reporting), as set forth in the previous option.

Telecommuting.  If an employee is required to remain home for the 21-day period, telecommuting may or may not be an option.

Family Members.  In addition, employers can require employee to report on whether household members have traveled to such areas, and whether they exhibit any signs of infection.  If there is, then the employee can be required to self-monitor or to remain out of work for the 21-day incubation period.

Confidentiality.  Any information received from employees with regard to Ebola exposure, symptoms, and medical examinations should be treated as a confidential medical record (meaning that it is kept in a secure file separate from the employee’s personnel file).  It is not appropriate for the employer to discuss the individual employee’s exposure, symptoms or results of medical examinations with the co-workers, or even managers who do not have a business need to know.  Employers may and should communicate that they have implemented Ebola policies and that the policies are being followed with regard to all employees to ensure a safe workplace.

Consult with Your Attorney.  In developing a written policy, we suggest that you consult with counsel to ensure that, before the proposed policy is implemented, legal risks have been identified and assessed, and that the policy is appropriate for your specific workplace.  In addition, what the policy actually contains may need to be modified as the Ebola situation further develops.

Ebola in the Workplace – The Law

Posted in Employee Leave (FMLA and ADA), Employment Discrimination, HR Compliance, Laws & Regulations, Workplace Trends

This is the second in a three-part series on Ebola in the workplace.  In the last blog posting, I discussed the actual facts about Ebola as set out by the Centers for Disease Control – exposure, symptoms, and self-monitoring.  In this posting, I will discuss the legal framework with regard to developing and implementing Ebola policies.  Primarily, there are three laws that come into play: the Occupational Safety and Health Act, administered by the Occupational Safety and Health Administration (OSHA), and the Americans with Disabilities Act (ADA) and Title VII, both of which fall under the authority of the Equal Employment Opportunity Commission (EEOC).

In a webpage discussing Ebola, OSHA states, “Employers must protect their workers from exposure to Ebola virus on the job.”  OSHA has identified workers in certain industries as being at risk of Ebola exposure, including healthcare employees.  OSHA has developed an Interim General Guidance for workers in these industries, identifying applicable OSHA standards and providing recommendations on infection control and prevention specific to each industry.

While employers in other industries may not be subject to those OSHA standards, they are still bound by the General Duty Clause, which requires employers to maintain a workplace free from hazards that can cause injury or death to workers.  OSHA has also issued a Guidance for Workers and Employers in Non-Healthcare/Non-Laboratory Settings on “Cleaning and Decontamination of Ebola on Surfaces.”

For most employers, the issue of exposure in the workplace will typically arise when an employee, or an employee’s family member, returns from travel to a country with an Ebola outbreak.  The concern is that these employees may have been exposed to Ebola and might subsequently develop an Ebola infection and thereby infect his or her co-workers.  In developing an approach to address this concern, employers must be aware of potential issues under the Americans with Disabilities Act (ADA) and Title VII.

Under the ADA, medical inquiries and examinations are permitted only where they are job-related and consistent with business necessity.  Determining whether a person poses a “direct threat,” meaning a substantial risk of substantial harm to the health or safety of him/herself or others, would be a sufficient reason for a medical inquiry or examination.  As the EEOC notes in its Interpretive Guidance on the ADA regulations, this determination must be based on “objective, factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes…”

The EEOC has not offered its views regarding Ebola in the workplace.  However, in 2009 in in connection with the H1N1 pandemic, it issued a Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which offers some assistance to employers in determining the parameters of appropriate medical inquiry and examinations. There, the EEOC states that employers should look to the latest assessment by CDC or public health authorities, although it acknowledges that the public health recommendations issued by these agencies may change, and may even differ from each other.  Under these circumstances, the EEOC stated, “employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”

In the context of Ebola, the types of medical inquiries and examinations can involve the following:

  • Asking employees where they traveled and whether they were exposed to Ebola
  • Requiring employees who have symptoms to go on leave and obtain medical treatment
  • Requiring employees to obtain medical clearance before returning to work
  • Checking the temperature of employees during the 21-day incubation period, or requiring them to report on self-monitoring (including temperature checks)

In determining whether and what medical inquiries and examinations are justified by a direct threat, the EEOC states that employers should look to the latest assessment by CDC or public health authorities.  The EEOC acknowledges that the public health recommendations issued by these agencies may change, and may even differ from each other.  Thus, according to the EEOC, “employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”  Thus, the information from the CDC, as discussed in the last blog post, will define the parameters of the employer’s requests for medical information and examinations.

On the question of what inquiries an employer may make of employees returning from travel, the EEOC notes that asking about the location of travel and exposure to infection during the trip is not a medical inquiry, and is therefore not subject to the ADA.  Thus, given the CDC’s pronouncements on the outbreaks in certain countries, it is permissible for employers to ask about where employees traveled and whether they were exposed to the Ebola virus.  Similarly, it would be permissible to ask about the travels of the employee’s household members.

An employee who has developed symptoms of Ebola – either before or after returning to work – clearly poses a direct threat and can be directed to not come to the workplace and to obtain immediate medical treatment.  Although this is self-obvious, the CDC also states that employees showing signs of Ebola should seek medical care.  Similarly, the EEOC, in its Pandemic Guidance, states that employees with symptoms of infection may be sent home, in order to remove any direct threat from the workplace.

A related issue is whether an employer can keep an employee who is not showing symptoms of Ebola out of work for 21 days (the length of the incubation period).  Requiring a 21 day mandatory leave, particularly if it is without pay, could be considered an adverse action based and be treated as “regarding” an individual as being disabled.  The employer imposing such a requirement must be able to demonstrate a business need for implementing it.  Notably, with regard to individuals who were not exposed to the Ebola virus, the CDC states, “During the time you are monitoring your health, you can continue your normal activities, including work.”  Further, given the CDC’s current thinking on Ebola exposure and infection, the argument that the ADA’s  “direct threat” exception would permit mandatory medical testing of anyone traveling to a country of outbreak at this time, would be problematic, particularly if there is no evidence of exposure to Ebola.  Local authorities, however, may have a different perception of these concerns, so it is worth checking to see what their recommendations are with regard to non-exposed travel.  With regard to employees who were exposed to the virus, however, the CDC is more equivocal, suggesting that the employee have his/her doctor evaluate the situation in consultation with public health authorities.  Given the CDC’s approach with regard to this category of travelers, an automatic leave requirement for employees exposed to Ebola may be sustainable – particularly if supported by local public health authorities.

Whether an employer can require medical clearance from employees before returning to work is similarly complicated.  If an employee has symptoms of Ebola, it is entirely appropriate to require medical clearance before permitting him/her to return to work.  In its Pandemic Guidance, the EEOC acknowledges that this action would be justified under the ADA standards.  If an employee was exposed to Ebola but exhibits no symptoms, the CDC’s recommendation that the employee should consult with his/her doctor would presumably support a requirement that the employee be cleared by that doctor before being allowed to return to work.  If an employee was not exposed to Ebola, however, the CDC’s current pronouncement that such employee could continue to engage in normal activities while self-monitoring will make such a requirement legally questionable.  While a direct threat exception clearly applies to employees with symptoms or those who have been exposed to the virus, this exception is less persuasive as to non-exposed employees given the CDC’s current position on such travelers.

On the question of whether an employer may require an employee to report on the results of self-monitoring or even to check the temperature of the employee, these actions are medical inquiries/tests under the ADA.  In its Pandemic Guidance, the EEOC states that “measuring an employee’s body temperature is a medical examination,” and thus its permissibility is governed by the risk assessment of the CDC and local and state public health authorities.  Based on the fact that the CDC is now requiring those who travel from the Ebola zone to check in daily with health officials to report their temperature and any symptoms, it seems likely that a requirement that the employee report the same information to the employer, or even allowing the employer to participate in the monitoring by checking the employee’s temperature, would be permitted under the ADA.  As the EEOC notes, however, employers must keep in mind that a temperature can be caused by conditions other than the one of concern.

Further, there may also be discrimination concerns under Title VII, which is potentially implicated whenever an employee is treated differently because of his or her race or national origin.  For example, an Ebola policy or procedure that addresses travel generally to the African continent could have a negative and disparate impact based on national origin if employees who are native to countries that are not actually experiencing an Ebola outbreak were treated as “health risks” simply because of traveling “home” (even as we recognize that American born employees might also be treated as such if they traveled to those same countries without that same legal risk).  To avoid the potential risk, it is important to ensure that any Ebola policy is appropriately targeted to accomplish the business need of protecting the workers without being overly broad and relying on unwarranted assumptions.

Given this legal background, we’ll next turn to practical suggestions in addressing Ebola in the workplace.

Ebola in the Workplace – The Facts

Posted in Employee Leave (FMLA and ADA), Employment Discrimination, HR Compliance, Laws & Regulations, Workplace Trends

Media reports of the Ebola outbreak in West Africa, along with the recent infection of two nurses in Dallas, have raised fears of the potential spread of Ebola in the United States, and employers are increasingly concerned about what they should do to address the possibility of Ebola in the workplace.  These concerns are heightened by the highly infectious nature of the disease and its high mortality rate.  Drawing on resources from the Centers for Disease Control (CDC), the Equal Employment Opportunity Commission (EEOC), and the Occupational Safety and Health Administration (OSHA), we offer guidance in a three part series on Ebola in the workplace.  In this posting, we focus on facts about Ebola.  In the next, we will address legal issues, and the third part will offer practical suggestions for developing an Ebola policy or procedure.

Ebola Facts

The CDC has an Ebola webpage on its website, containing a number of documents relevant to the Ebola outbreak and its impact on U.S. citizens.  At this time, the CDC has issued a Level 3 Travel Notice for Guinea, Liberia and Sierra Leone, meaning that all non-essential travel to those areas should be avoided.  The CDC has also issued a lower level Travel Notice for the Democratic Republic of the Congo (a Travel Notice for Nigeria has now been pulled).  No other countries have yet been identified by the CDC as being of concern.

Any possible infection arises from exposure to the Ebola virus.  According to the CDC, exposure to the Ebola virus includes the following:

  • Touching a person who was sick with or died of Ebola
  • Touching items that may have been in contact with an infected person’s blood or bodily fluids (urine, saliva, sweat, feces, vomit, and semen)
  • Caring for or staying with someone who is sick with Ebola
  • Spending a long time within 3 feet of someone who is sick with Ebola (including during travel)
  • Coming in contact with animals (such as bats and monkeys) or with raw or undercooked meat
  • Visiting a hospital where Ebola patients are being treated

Exposure to the Ebola virus does not mean that the person will become infected.  There is a 21-day incubation period following exposure, during which time an infection may develop.  If any signs of infection manifest, the individual must seek immediate medical treatment.  The signs of Ebola infection include:

  • Fever of 101.5 or more
  • Severe headache
  • Muscle pain
  • Vomiting
  • Diarrhea
  • Stomach pain
  • Unexplained bleeding or bruising

 In its Level 3 Travel Notices for the countries identified above, the CDC recommends that an individual who has been exposed to the Ebola virus contact his or her doctor.  The doctor should evaluate the individual’s exposure level and consult with public health authorities to determine whether any actions, such as medical evaluation and testing for Ebola, monitoring, or travel restrictions, are needed.

In addition, the CDC recommends that anyone traveling to an area with an Ebola outbreak, even if not exposed to Ebola, should self-monitor for the 21-day incubation period.  This means taking his/her temperature every morning and evening, and watching for the other signs of infection.  The CDC will also monitor all travelers returning from the Ebola zone, by requiring contact information including email, two phone numbers and a physical U.S. address for all people coming to the U.S. from Liberia, Guinea or Sierra Leone.  These travelers will be required to check in daily with health officials to report their temperature and any symptoms of Ebola.

The CDC offers fact sheets on What You Need to Know About Ebola and Facts About Ebola in the U.S. that may be helpful in educating employees.

In the next post, I’ll talk about the legal issues associated with Ebola in the workplace.

Employees May Discuss Their Discipline

Posted in Labor Law & NLRB

Wise employers know that management should keep individual employee discipline on a need to know basis.  In other words, an employee’s written warning or counseling should not be shared by management with the employee’s co-workers or even with managers who are not in the employee’s chain of command.  Some employers may also take the position that the employee should not discuss his/her discipline with co-workers because it may be disruptive if the employee does so, and therefore disciplinary matters should be considered confidential.  This position, however, could be problematic under the National Labor Relations Act, as one employer learned to its dismay in Philips Electronics North America Corp.

In this case, an employee received a final warning for disruptive behavior during meetings and harassment of colleagues and management.  After receiving the warning, the employee continued to harass a co-worker who complained about him by driving a forklift into the co-worker’s area and, while seated 10 feet away, making comments to her (Seriously?  Even my crazy teenagers are more mature than that!).  He also showed the warning to some of the other co-workers, while blaming the co-worker.  The company investigated these additional actions, and prepared a summary report of its findings.  This included a statement that the employees “are aware that disciplinary forms are confidential information and should not be shared on the warehouse floor, at any time…”  The employee was then fired. His termination notice stated that he was being terminated, in part for sharing confidential information.  It further stated that he had been told that his discipline was confidential at the time it was issued to him.

The National Labor Relations Board found that the employer had maintained an unwritten rule that discipline is confidential and prohibiting employees from discussing their discipline with co-workers.  It further found that this rule was a violation of Section 8(a) of the NLRA, which protects the rights of employees (both union and non-union) to discuss their terms and conditions of employment.  Specifically, the Board emphasized the importance of employees being able to discuss their discipline with each other, so that other employees would be aware of the nature of the discipline, how to avoid it, and how to defend themselves.

So employers, keep in mind that employees can disclose their own discipline if they want.

 

 

 

Employee’s Claims Undermined By Her Facebook Posts

Posted in Litigation, Social Media

As I’ve said before, it amazes me what people will put on their Facebook (and other social media) pages.  Many users, particularly Gen-X’ers, Y’ers, and millienials (and my crazy teenagers), tend to think of Facebook as being a private conversation (with 500 of their dearest friends).  Savvy employers should keep this in mind when faced with defending a (meritless) lawsuit brought by an employee.  It is amazing what you can find on a Facebook page, as the employer learned to its delight in Mealus v. Nirvana Spring Water NY Inc.

An employee told her supervisor that she had accepted another job.  The job offer was subsequently withdrawn, apparently because the employee had talked to others about what she would be making, which the new company viewed to be a breach of confidentiality.  (I question whether the company’s “confidentiality” policy violates the right of employees to discuss their pay under the National Labor Relations Act, but that’s a whole other issue…).  The employee ranted about this on her Facebook page.  There was conflicting testimony about whether the employee then asked for her job back, but in the end, she had a verbal altercation at work and claims that she was “forced to quit.”  That evening, she sent an email to the employer, claiming that she had been sexually harassed by the chairman of the Company’s Board of Directors (and brother of the CEO).

The employee then sued the employer, claiming that the sexual harassment made her physically ill, and that the harassment was the sole cause of her illness.  But, as the employer pointed out when asking the court to dismiss her claims, within days after her resignation, the employee had posted on her Facebook page that her boyfriend’s ex-girlfriend “caused utter chaos in our lives and he let it happen and I was so upset that I got sick every day for 4 months.”  Months later, she described her relationship with the then-ex-boyfriend as a “10-month nightmare.”  The court found that these posts, as well as other evidence including the employee’s own emails, directly contradicted the claims and allegations in her complaint.  The court then threw out her lawsuit.

So, the lesson for employers here is that an employee’s social media activity can contain incredibly helpful information for a defense, particularly since it’s in the employee’s own words.  In the course of litigation, employers should always seek access to the employee’s social medial activity.  But caution – if an employer wants to view an employee’s social media activity before a lawsuit is filed (like during an internal investigation into possible employee misconduct), there may be state laws that restrict access by an employer to private social media accounts.  And you can’t get around those restrictions by asking another employee who is “friends” with the employee to access the private account.  But hey – anything that is publicly available is fair game, and it is astounding how many people do not put privacy settings on their social media accounts!