I follow proposed employment legislation in Maryland during our legislative session, which runs from January to April each year. More and more, the bills that are proposed use California statutes as models, which is troubling. Employers in our State certainly do not want Maryland to become the “California of the East!” More troubling still, in Baltimore City (which genuinely needs to attract more business) there currently is a piece of legislation pending before the City Council that would prevent employers from asking about an applicant’s criminal history until a conditional job offer is made, and thus is much more radical than typical “ban-the box” legislation enacted in a few states.

Some states prohibit “the box” (i.e. a question about criminal history) on an employment application but do permit criminal history questions to be asked of an applicant in a job interview.  The stated rationale for this type of law is that it gives convicted criminals, who otherwise might be automatically disqualified from employment by an affirmative answer to the criminal history question, to get their foot in the door and potentially “wow” the employer during an interview.  (While I understand the rationale, I actually don’t see the need for this type of law –  the EEOC has repeatedly and aggressively stated that automatic disqualification policies are discriminatory against minorities.  In my experience, most employers don’t consider an affirmative answer to automatically disqualify an applicant.  They do take the circumstances of the conviction into account – what kind of conviction, how long ago it was, etc.)    

The proposed ordinance, however, takes this even further – unreasonably so.  It would permit employers to obtain criminal background information only after a job offer is made (except for jobs where criminal background checks are required by law).   This means that an employer would go through an entire recruitment process only to find out, after choosing a candidate, that the individual has an employment-disqualifying criminal record.  That simply makes no sense.  What a waste of time and recruiting resources! 

In addition, the proposed ordinance prohibits employers from taking any action against an applicant or employee based on arrest.  Sometimes employers want to put an employee on leave while certain charges are pending.  This would affect an employer’s ability to do so. 

This proposed ordinance is really troubling for employers.  If you’re a Baltimore City employer, you may want to let your Council member know about your concerns!

 

One of the most challenging issues that my clients deal with is managing employee leave rights under the Americans with Disabilities Act and the Family and Medical Leave Act.  Getting employees to come to work on a regular basis can be frustrating – hair-pulling, teeth-gnashing frustrating.  So the recent case of Mecca v. Florida Health Services Center, Inc., in which the court held that regular attendance at work is an essential function of a specialty nurse’s job, is grounds for rejoicing by employers.

This case involved a peripherally inserted central catheter (PICC) nurse, a position that requires specialized training and is subject to specific treatment protocols.  The nurse requested and received accommodation for panic attacks in the form of both intermittent and block FMLA leave.  After being threatened with termination for failing to respond to requests to assess patients and insert a PICC line, the nurse resigned.  He subsequently sued, claiming among other things that the employer failed to provide reasonable accommodation under the ADA.

In order to be protected under the ADA, an employee must be able to perform the essential functions of his job with or without reasonable accommodation.  The ADA regulations identify three bases for finding that a job function is essential:

  • the reason the position exists is to perform the function
  • there are a limited number of employees available among whom the performance of the job function can be distributed
  • the function is highly specialized so that the incumbent in the position was hired for his or her expertise or ability to perform the particular function

In this case, the court found that the nurse’s position was so specialized, he could not be easily replaced at a moment’s notice, which would jeopardize patient care.  Therefore, regular and punctual attendance was an essential function of the PICC nurse position.  The only accommodation the nurse sought was leave.  But taking leave obviously will not help the nurse meet the essential job function of regular attendance.  Because the nurse could not perform an essential function of his position, he was not entitled to the protection of the ADA.

Sadly, even though it makes no sense, regular attendance is not considered an essential job function for many jobs.  But it may be for certain specialized positions, and employers should be aware of this possibility as they struggle to manage employee leave demands.

Even smart people can get tripped up on personnel decisions.  Harvard, for example, ran into this problem in Pierce v. President and Fellows of Harvard College. 

That case involves an African-American university police officer claiming race discrimination and retaliation in the denial of three promotions and being placed on foot duty.  The court threw out the claims as to one of the promotions and the foot duty assignment, but found that there was enough evidence to support his claims as to two of the promotions to send it to trial.

Specifically, the court found “puzzling” and “inconsistent” Harvard’s explanations as to one of the promotions – that the promotion was cancelled by the chief of the university police department because a member of the interview panel leaked interview questions to one of the candidates, that there may have been sex discrimination because a highly-qualified female was not advanced in the process, and that a new development project might change the department’s staffing needs.  The court noted the inconsistency in the chief’s explanation of finding the leak to be so problematic that the promotion had to be cancelled, but not taking any disciplinary action against those involved in the leak.  As to the sex discrimination, a female panel member said that she saw no improprieties in the process.  And with regard to the staffing needs, Harvard failed to explain how or why the project would affect staffing.

As for the second promotion, the Court found troubling evidence that suggested the successful Caucasian candidate had been preselected for the position and that the selection process had been “exceptionally abbreviated,” with interviews lasting only 10 minutes each and taking place in the course of a single day.  The typical process takes at least one week, according to six witnesses.  The officer also offered evidence that his managers’ attitudes towards him changed after he complained about possible discrimination, and that he was targeted for an extended disciplinary investigation.  In addition, there was evidence that the departmental managers had retaliated against other employees, including similar changes in attitude, who had either complained about department management or supported complainants.

There are a number of lessons here for employers.  First, don’t offer inconsistent or changing explanations for an employment decision.  Second, make sure your explanation makes sense.  Third, don’t deviate from normal processes unless you have a really good reason for doing so (and make sure you can prove that reason).  Fourth, make sure you continue to interact with complaining employees in the same professional manner that you interact with other employees, and don’t assign them suddenly to less favorable work or shifts.

In a happier, pre-ADAAA (Americans with Disabilities Act Amendments Act) time, I could blithely advise clients that any medical condition that lasted less that 6 months was only temporary, and therefore was not a covered disability under the ADA.  Upon passage of the ADAAA, however, this elegantly simple, bright-line rule no longer applies.  Instead, we are faced with chaos and uncertainty, as evidenced in  the case of Summers v. Altarum Institute – the first appellate court decision to address the expanded definition of “disability” under the ADAAA. 

An employee of the Institute had a serious accident, injuring both legs and requiring several surgeries.  He was unable to walk for seven months.  After his short-term disability benefits expired, he asked if he could telecommute on a part-time basis, with a plan to work back up to full-time.  The Institute did not respond to his suggestion or engage in any interactive discussions about what other accommodations might be possible, as required by the ADAAA.  Instead, it terminated and replaced him. 

Unsurprisingly, the employee then filed suit, claiming, among other things, that the Institute discriminated against him by wrongfully discharging him on the basis of his disability.  The Institute argued that the employee’s condition, which lasted less than a year, was only a temporary impairment that shouldn’t be considered a disability under the ADAAA.  And if the employee wasn’t disabled, he wouldn’t be entitled to the protections of the Act.  The federal district court agreed with the employer and dismissed the employee’s disability discrimination claim.

On appeal, the U.S. Court of Appeals for the 4th Circuit found that the district court had applied the wrong, pre-ADAAA, standard for assessing disability.  Noting that the ADAAA was intended to broaden the scope of the law (and has it ever!), the 4th Circuit looked to the Equal Employment Opportunity Commission’s regulations, which state, “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of establishing a covered disability.  In addition, the EEOC stated in the appendix to these regulations that, although “[i]mpairments that last only for a short period of time are typically not covered,” they may be covered, “if sufficiently severe.”  (What is sufficiently severe?!!)  An example of such a disability given by the EEOC is a back impairment resulting in a 20-lb lifting restriction lasting only for “several months.”  (What does “several” mean? Various dictionaries say “more than two or three, but not many.” Huh.)  In light of this guidance by the EEOC, the 4th Circuit determined that the employee’s seven-month (which is certainly more than “several” months) condition did, in fact, constitute a disability.

What does this mean for employers?  They should be wary of dismissing a temporary condition as not being a disability.  Really, it is safer to assume that the condition is a disability.  As one of our clients says, “ADAAA stands for ‘Assume Disability, Always Attempt Accommodation!'”  Love it!

Management-side labor attorneys often are spoilsports when it comes to outside groups entering company property to peddle their wares.   Many employers think they are being the benevolent boss by inviting cable companies, cell phone providers, charities, etc. onto the company premises and allowing these groups access to their employees.   But if you allow all of these groups onto your property, what happens when the Union organizers show up?  While the NLRB has recognized an exception if the outside groups are very limited (such as allowing for a United Way drive once a year), the general rule is that if an employer allows outside groups access to its property to solicit employees, it must also allow the Union similar access.  

This issue became relevant again in a NLRB case decided last week, Phillips 66.   In that case, the employer owned a tract of land across the street from the company’s facility.   The employer leased the land to a local fire department for its fire station.   The Operating Engineers already represented a small group of the employer’s employees, and the fire department had previously allowed this Union to hold their membership meetings at the fire station.   But the Operating Engineers then made a run at the company’s 340 unrepresented employees, and asked the fire chief if they could have a barbecue and picnic at the station as part of the organizing drive.   The chief initially said yes, but the company objected (it was, after all, the company’s land) and the party was moved elsewhere.

In a unanimous decision, the NLRB found that this violated labor law because the company had discriminated against the Union’s organizing activities while allowing the Union’s regular membership meetings.   The Labor Board seems to take the same tact with Unions that it takes with outside groups – if you allow the Union onto your property to do other “stuff” (like the monthly membership meeting with the group already represented), you can’t discriminate when the Union wants to hold an organizing picnic for your non-union workers.

 Left unanswered by this case is how far the decision reaches.  For instance, Union leaders are often given access to an employer’s property for purposes of administering a collective bargaining agreement (meeting with grievants, etc.) and other representational activity in non-work areas (the employee break room, for example).   Does this decision mean that if the employer permits that type of access to an incumbent Union to administer the CBA, it is also obligated to give the Union access for an organizing drive?  Or is Phillips 66 strictly limited to the unique facts of that case?   Moreover, even if the Union hypothetically had access, can the parties agree in a CBA that any such access for administrating a CBA specifically excludes access for organizing? Is the organizational “right” described in Phillips 66 even subject to employer restrictions in bargaining?

The most cautious route for the employer is to be the marplot and limit Union access to its property as much as possible.   While the reach of Phillips 66 can be debated, it is unlikely that the decision would have come out the way it did if the company had prohibited outside groups (including the Union) from meeting at the fire station in the first place.

This seems like a no-brainer – if an employee has to work fewer hours, the employer should expect (and assign) less work from the employee.  Well, an employer you would think would be savvy about this obvious point – IBM – seems to have missed it, in the case of Hochstetler v. International Business Machines, Inc.

Because of an employee’s autoimmune disease, she could not work more than 45 hours a week, instead of the expected 60-70 hours.  She provided a doctor’s note requesting a limitation on work hours, and this accommodation was approved by IBM.  The employee then told her supervisor that she could not accomplish all of her assigned work within the reduced work week.  Instead of reducing her workload, the supervisor allegedly added new tasks.  The employee then received a poor performance evaluation.  This poor evaluation was a factor in the decision to select her for layoff during a subsequent reduction in force.

The employee then sued for failure to accommodate her disability, among other things, and IBM moved for summary judgment (meaning that it requested the court to find that no valid claims exist as a matter of law, given the facts of the case, before getting to trial).  The Court found that it was possible that agreeing to reduce an employee’s hours but refusing to reduce her workload could be a failure to reasonably accommodate the employee’s disability, as required under the Americans with Disabilities Act.  Therefore it refused to dismiss this claim.

Now at trial, IBM could try to prove that it wasn’t possible to reduce her hours, because all of the assigned work was part of the essential function of the employee’s job, since the ADA doesn’t require employers to alter the essential functions.  Or it could show that the employee could have gotten all the work done in the 45 hours.  But neither of those two things seems very likely, does it?  Common sense would seem to provide that fewer hours = less work.

 

We’ve heard about racial profiling by the police.  But what about by employers?  A state agency, the Nebraska Equal Opportunity Commission, made the very broad (and aggressive) finding that, “Racial profiling occurs when an employee . . . is questioned, disciplined, and terminated, on the basis of his race.”  That is a strange definition of racial profiling to me.  It was to a federal court as well, who rejected this definition in the case of Anderson v. The Nebraska Medical Center.

A patient at the Medical Center complained that an employee drawing blood had held her hand between his legs against his penis during the procedure.  She described him as a “large black man.”  Six months later, another patient complained that an employee drawing her blood had run his uncovered penis over her hand.  She similarly described him as a “heavy set black man in a white lab coat.”  The Medical Center conducted an investigation in each instance, identifying the employees who had conducted blood draws for the patients.  The employee in question, a tall black man weighing 280 pounds, was the only one who met the descriptions.  After being counseled the first time, he was terminated for the second incident.

The employee filed a charge of discrimination with the NEOC, which found that there was “reasonable cause” to believe that he had been terminated because of his race.  The employee then sued the Medical Center for race discrimination, relying on the NEOC’s finding of “racial profiling.”  The Court, however, criticized the NEOC’s definition of racial profiling.  It noted that racial profiling occurs when:

  • Suspects for a crime are developed based on statistical data,
  • Suspects are developed based on racial stereotypes, and
  • A person is subjected to a higher level of scrutiny or surveillance by law enforcement officers, merchants, landlords or employers, because of the person’s race.

The Court went on to state, reasonably and logically, “But when an eyewitness identifies a perpetrator with a physical description, and authorities narrow the suspects based on that physical description, that is not “profiling.”  It further noted that, “It was not inappropriate, nor was it ‘racial profiling’ for the Hospital to try to identify the perpetrator through the use of the patients’ descriptions.”  Thus, the Court found that the employee was terminated because of his misconduct, not because of his race, and threw out the lawsuit against the Medical Center.

“Racial profiling” is such a loaded term, with many negative connotations.  It’s good to know that employers won’t be automatically tagged with that term when they reasonably identify an employee because of a complaint containing a description that includes the miscreant’s race.  After all, our race is one of the most readily identifiable and obvious things about each of us.

It seemed obvious to me, and I imagine most employers would agree, that if an employee refused to participate in a police investigation into workplace theft, you could terminate that employee.  Well, we all might be wrong (??!!), according to a federal district court, in the case of Gomez v. Garda CL Great Lakes, Inc.

Two armored car drivers reported to their supervisor their suspicion that money was missing from one of their sealed cash bags.  The employee drivers cooperated during an internal investigation, and even passed a polygraph exam.  But during the police investigation, both employees chose to invoke their Fifth Amendment right to remain silent.  The supervisor questioned the employees about their refusal to cooperate with the police investigation, pointing out that the company was working with the police.  Both employees insisted on exercising their right to remain silent, and (unsurprisingly, at least to me) both employees were fired.

The employees sued, claiming that there was a conspiracy between the company and the police to deprive them of their constitutional rights, that they had been denied due process, that they had been retaliated against for exercising their constitutional right to remain silent, and that their termination violated public policy.  The company asked the court to dismiss the case, arguing that the employees had not made sufficient allegations in their court complaint to support these claims.  The court, however, disagreed with the company, finding it was possible that, as alleged, the supervisor might be liable under these claims.

The court first found that the employees had sufficiently alleged an agreement between the police investigator and the supervisor to terminate the employees if they exercised their Fifth Amendment rights, as required for the conspiracy claim.   As for the due process claim, although a private person, like a supervisor, is not normally subject to this type of claim, they can be if they conspire with a government entity.  Therefore, the court found that, because of the allegations of joint conduct between the police and the supervisor, there was support for the claim that the supervisor had deprived the employees of a liberty interest – “the liberty to follow a trade, profession or other calling” – without due process.  And the court determined that it was possible to find that the supervisor had retaliated against the employees for exercising their protected constitutional rights.  As for the company, the court held that the constitutional right to remain silent is a public policy, and that it was possible that terminating the employees violated that public policy.

This is not the end of the story – this lawsuit has just begun.  The supervisor and the company will have the chance to prove that there was no conspiracy with the police.  But the fact remains that it is possible that they won’t be able to do so – and can end up paying the employees money because they made the presumably reasonable decision to terminate those employees for failing to cooperate in the police investigation!!

Most (I hope) employers understand that they have to comply with the notice and authorization requirements of the Fair Credit Reporting Act (FCRA) when using a third party to conduct background checks of current and prospective employees.  What many employers don’t realize is that there are certain FCRA obligations that may apply with regard to former employees, as illustrated in Maiteki v. Marten Transportation, Ltd. et al.

Three former employers of a truck driver reported false negative information about the driver’s accident record to a consumer reporting agency.  Because of the negative reports, the driver couldn’t get another job.  When the driver discovered the wrong information on his record, he contacted his former employers and asked them to correct it.  Each of them told him that that they would investigate and remove the false reports.  Sadly for him (and now for them), none of them did so.  After continuing to be rejected from employment, the driver repeated his requests to his former employers.  Again, they failed to do anything.  He also contacted the consumer reporting agency, which followed up with one former employer.  No corrections by the former employers were ever made.  The frustrated driver then sued each of his former employers under FCRA.

Unfortunately for the driver, the federal district court found that FCRA doesn’t provide a cause of action against former employers for providing false or inaccurate information to a consumer reporting agency.  (Really?  Huh.)  But the court did find that if an employer is informed by a consumer reporting agency that there is a dispute about the accuracy or truthfulness of information that they have provided to the agency, FCRA imposes an obligation on employers to “conduct an investigation with respect to the disputed information.”  The court also held that former employees can bring a claim against employers who fail to conduct a reasonable investigation.

The lesson for employers here is that they should be careful to provide accurate and truthful information about former employees to a consumer reporting agency.  (This information may include driving records, licensing, salary, termination information, etc.)  In addition, if an employer receives a complaint that the information provided is not correct, it is important for that employer to investigate the complaint and make any necessary corrections promptly.

It dumbfounds me how creative people can be in coming up with new ways to harass others.  Take, for example, the recent case of Royal v. CCC&R Tres Arboles, LLC, which involved a complaint of sexual sniffing.  Yes, sniffing.  Like a dog.

A female employee worked as an apartment complex leasing manager for only four days.  But during that time, she was regularly visited by two maintenance men who, according to the employee, hovered over her and sniffed her in a sexually suggestive manner.  They refused to stop, even when she told them that she didn’t like their behavior.  One of them also stared at her while obviously aroused.  When she complained to a manager, he told her “to let it slide” and also said, “You know how men are like when they get out of prison.”  (Was that supposed to be reassuring somehow?)

The next day, a meeting was held so staff members could “get things off their chest.”  The female employee complained about the sniffing, to which one of the maintenance men responded that he had a medical condition and the other said that he “needed to get a release.”  Later that same day, the female employee was fired without being given any reason.

The employee sued for sexual harassment and retaliation under Title VII.  As the U.S. Supreme Court stated in Faragher v. City of Boca Raton, harassment must consist of more than “simple teasing, offhand comments and isolated incidents (unless extremely serious).”  To constitute illegal sexual harassment, the conduct must be based on sex, and it must be severe or pervasive (meaning that it occurs repeatedly over a period of time).  A magistrate judge found that the sniffing conduct was not objectively offensive or pervasive, and therefore did not support a Title VII claim.  The judge granted summary judgment to the employer and the case was dismissed.

On appeal, however, the U.S. Court of Appeals for the 5th Circuit disagreed.  In this particular case, the 5th Circuit found that the conduct could rise to the level of actionable harassment, stating that, “The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on [the employee’s] sex.”  The 5th Circuit went on to observe, with a touch of snarkiness, “Indeed, it is difficult to imagine the maintenance men sniffing and hovering over [the employee] if she were a man.”

The 5th Circuit also noted that the conduct was pervasive, occurring approximately 12 times over 4 days.  It stated, with another touch of snarkiness, “The only thing interrupting this conduct seems to have been [the employee’s] termination.”  (The 5th Circuit was on a roll, which makes for an entertaining read).

What this case establishes is that actions that don’t normally have a discriminatory meaning can take one on, depending on the context.  Employers should not be too quick to dismiss as meaningless behaviors that don’t fall into the normal types of “harassing” conduct.  It’s important to take a look at the whole picture.