Showing posts with label The Employee with the Dragon Tattoo. Show all posts
Showing posts with label The Employee with the Dragon Tattoo. Show all posts

Friday, February 17, 2017

Smells like a Lawsuit . . . Odor Sensitivity under the ADA


An Illinois federal judge has rejected an employee’s disability discrimination lawsuit, in which the employee claimed her employer failed to reasonably accommodate her odor sensitivity as required under the Americans with Disabilities Act (“ADA”).  While employers have a legal duty to reasonably accommodate such a disability, this case highlights that there is a limit.
As noted in the U.S. District Court’s opinion in Alanis v. Metra, Plaintiff Elda Alanis had worked for the company for approximately ten years, when she experienced difficulty breathing in the workplace, and claimed not to be able to speak, and would only communicate via text message or on handwritten notes. 
Alanis took FMLA leave and following a psychological evaluation, ultimately returned to the workplace with a diagnosis of fragrance sensitivity.  Among Alanis’s multiple accommodation requests was for “a fragrance-free workplace.” 
 In response, the company agreed to take actions to reduce workplace odors, which included changing the cleaning solutions in the restrooms, instructing staff to use only the approved cleaning solutions, instructing staff to refrain from wearing strong fragrances, and moving Alanis’s workspace to a cubicle farther away from the refrigerator and microwave (one source of the odors she was complaining about). Alanis also was instructed to promptly notify the company if any other fragrance issues arose.  The company also granted Alanis’s requests for a relaxed dress code, not having to talk while symptomatic, and rest breaks away from her work station, but did not agree to all the accommodations sought by Alanis. 
 In dismissing Alanis’s ADA failure to accommodate claim, the District Court noted that the ADA only requires an employer to make reasonable accommodations to a disabled employee’s limitations, and employer are not required to provide the particular accommodation that an employee requests. Instead, the employer may choose what accommodation to provide, so long as it effectively accommodates the employee’s limitations.  The District Court held the company’s accommodations in regard to Alanis were reasonable:
 
Once Metra learned that the changes it made to accommodate Alanis did not eliminate her symptoms, Metra invited Alanis to notify it of any odor issues contemporaneously so that the source could be investigated. When Alanis did report an issue, Thomas intervened on Alanis’s behalf and reminded the relevant staff member of the fragrance-free workplace requirement. The record shows that Metra made reasonable efforts to provide (and police where necessary) the accommodations it agreed to provide Alanis. That Metra could not guarantee a fragrance-free environment for Alanis does not constitute an adverse action

The District Court’s ruling is line with similar cases around the county in which ADA claims were dismissed because a an employee’s request for a fragrance-free or odorless workplace was held to be unreasonable and not feasible.
Fragrance or odor sensitivity clearly qualifies as disability.  The Equal Employment Opportunity Commission takes the position that under the ADA, an employee may be disabled if a workplace odor causes asthma or causes an otherwise normal reaction or allergy to become severe.  Finding a reasonable and realistic accommodation is best accomplished through engaging in an interactive discussion with the employee. 
·         Depending on the position and job responsibilities, allowing the employee to telecommute or work from home might be a reasonable accommodation.
·         For employees who are sensitive to certain workplace odors, changing their workplace/office locations to an area of less exposure could be a reasonable accommodation. Workplace odors triggering a medical condition also may be more generalized, such as the odors from copy machines or printers or from cleaning products.
·         A perfume/cologne free policy can be a reasonable accommodation. While other employees may find it unreasonable, wearing perfume or cologne in the workplace is not a protected right.






Wednesday, January 4, 2017

THE $300,000 FLU SHOT


While getting a flu shot may result in a temporarily sore arm, a Pennsylvania hospital is feeling some significant financial pain in its bank account after settling a lawsuit over its mandatory flu shot policy. 
As first reported here back in October 2016, the Equal Employment Opportunity Commission (“EEOC”) has filed lawsuits nationwide against healthcare facilities which require that their employees receive seasonal flu vaccines.  The EEOC’s position is that such policies violate Title VII of the Civil Rights Act (“Title VII”) by failing to accommodate the religious beliefs of healthcare employees.
 
As previously reported, one of the hospitals being sued by the EEOC was Pennsylvania-based Saint Vincent Health Center.  On December 23, 2016, Saint Vincent agreed to settle the EEOC lawsuit for $300,000, which includes back pay and compensatory damages to six former employees who were fired for failing to comply with the hospital’s policy.  The settlement also requires offers of reinstatement to the six employees, and includes a consent decree requiring injunctive relief.
To recap the facts of the lawsuit, the EEOC alleged that in October 2013, Saint Vincent implemented a mandatory seasonal flu vaccination requirement for its employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during flu season in lieu of receiving the vaccination. Employees who refused the vaccine but were not granted an exemption by the Health Center were fired. 

From October 2013 to January 2014, the six employees identified in the EEOC’s lawsuit t requested religious exemptions from the flu vaccination requirement based on sincerely held religious beliefs, and the Health Center denied their requests. When the employees continued to refuse the vaccine based on their religious beliefs, they were terminated. In its lawsuit, the EEOC stressed that during the same period, the hospital granted fourteen (14) vaccination exemption requests based on medical reasons while denying all religion-based exemption requests.

Under the consent decree, if Saint Vincent chooses to require employee influenza vaccination as a condition of employment, it must grant exemptions from that requirement to all employees with sincerely held religious beliefs who request exemption from the vaccination on religious grounds unless such exemption poses an undue hardship on the Health Center's operations, and it must also notify employees of their right to request religious exemption and establish appropriate procedures for considering any such accommodation requests.
The decree also requires that when considering requests for religious accommodation, the Health Center must adhere to the definition of "religion" established by Title VII and controlling federal court decisions, a definition that forbids employers from rejecting accommodation requests based on their disagreement with an employee's belief; their opinion that the belief is unfounded, illogical, or inconsistent in some way; or their conclusion that an employee's belief is not an official tenet or endorsed teaching of any particular religion or denomination. The decree further requires that Saint Vincent provide training regarding Title VII reasonable accommodation to its key personnel and that it maintain reasonable accommodation policies and accommodation request procedures that reflect Title VII requirements.

Does this mean mandatory vaccination policies at healthcare facilities are prohibited?  According to the EEOC’s Philadelphia District regional attorney, Debra M. Lawrence:
While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer's Title VII duty to provide reasonable accommodation for religion.  In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer's operations.

However, reasonably accommodating healthcare employees who have direct contact with patients may be easier said than done.  According to the Centers for Disease Control and Prevention, the flu is highly contagious and people with flu can spread it to others up to about 6 feet away. Most experts think that flu viruses are spread mainly by droplets made when people with flu cough, sneeze or talk. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Less often, a person might also get flu by touching a surface or object that has flu virus on it and then touching their own mouth or nose. 
While the effects of the flu on most people are not life-threatening, the CDCP notes that severe cases of the flu can result in death for some people, such as the elderly, young children, and persons with certain health conditions, including weakened immune systems.  The consent decree does allow Saint Vincent to adopt on-the-job precautions to avoid the transmission of the flu to its patients by employees who have been granted a religious exemption.




Tuesday, December 20, 2016

EMPLOYMENT LAW AND A NEW ADMINISTRATION

 

One of the biggest employment law developments of 2016 will carry over into 2017 and a new administration.  Employers nationwide spent much of the past year preparing for the December 1, 2016 implementation of the Department of Labor’s (“DOL”) Final Rule, bumping the minimum salary level for white collar exemptions under the Fair Labor Standards Act ("FLSA") from $23,660 annually ($455 per week) to $47,476 annually ($913 per week).  However, just days before this key initiative of the Obama administration was to go into effect, a federal judge in Texas issued a nationwide preliminary injunction, finding the DOL had likely exceeded its authority under the FLSA. While breathing a sigh of relief, employers were left wondering what would happen next.
Current Labor Secretary Thomas Perez has since appealed the decision to the U.S. Court of Appeals for the Fifth Circuit, seeking expedited review.  However, even under the expedited briefing schedule set by the Fifth Circuit, oral argument would not take place until at least February 2017, which would be after Donald Trump takes office.  This would allow the DOL, under Trump’s expected Labor Secretary Andy Puzder, to abandon the appeal.  Puzder, who is the current CEO of the parent company of Hardee’s and Carl’s Jr., has gone on record as to his strong opposition to the DOL’s overtime rule. 
My first prediction of 2017 is the Final Rule and its increased minimum salary requirement never goes into effect. Not surprisingly, Puzder also opposes efforts to increase the minimum hourly wage to $15, claiming such a significant increase would hasten the move to automation in the fast food industry and cost jobs.
In these waning days of 2016, the Equal Employment Opportunity Commission (“EEOC”) offered guidance to employers as to the rights of employees with mental illnesses under the Americans with Disabilities Act, and issued updated enforcement guidelines on national origin discrimination, including question and answer guidance and advice for small businesses.  Generally, national origin discrimination refers to: (a) treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group; or (b) using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity. 
President Trump also will be putting his stamp on the EEOC.  As previously reported,  over the last eight years, the EEOC has taken a very aggressive posture toward employers, including lawsuits against companies over criminal background checks and separation agreements.  The EEOC’s actions and litigation conduct earned it some harsh words and harsh rulings from a number of federal courts. 
President Trump will select a new EEOC Chairman and a new EEOC General Counsel in 2017, both of whom will set the tone and agenda of the agency going forward.  With the Trump administration’s focus on reducing regulations faced by businesses, one target could be recent major revisions to the Employer Information Report (EEO-1).  With a focus on equal pay issues, the new form will require employers to list employee pay and hours by categories of sex, race and ethnicity.  The regulations are slated to go into effect in March 2018, but under a new administration, could be revised or even abandoned.


Monday, November 28, 2016

SURPRISE RULING ON FLSA OVERTIME RULE


It continues to be a season of surprises in American politics . . . and in employment law.  Who would ever have thought that a federal judge, appointed by President Obama, would throw a money wrench in a key initiative of the Obama Department of Labor?  Not me.  As I incorrectly predicted in my November 18, 2016 article, I fully expected U.S. District Judge Amos L. Mazzant III to shoot down an injunction aimed at blocking the December 1, 2016 implementation of the DOL’s Final Rule, bumping the minimum salary level for white collar exemptions under the Fair Labor Standards Act ("FLSA") from $23,660 annually ($455 per week) to $47,476 annually ($913 per week).

What instead happened was that Judge Mazzant entered a nationwide preliminary injunction on November 22, 2016, blocking for now the U.S. Department of Labor (“DOL”) from implementing significant changes to the overtime rules applicable to white collar employees.  The ruling out of the U.S. District Court for the Eastern District of Texas held that the DOL most likely exceeded its authority by doubling the salary requirement, which would have rendered essentially meaningless the duties test, which is actually written into the FLSA.

The issuance of an injunction means that implementation and enforcement of the Final Rule by the DOL is just on hold until further notice by the Court.  The DOL has not yet announced whether it intends to appeal the ruling, and it remains to be seen if the Trump administration would have any interest in trying to implement a Rule so unpopular within the business community.  Another potential option might be a revised Rule that would include a smaller increase in the minimum salary requirement.

What I think I did get correct was my observation that “[i]f the unlikely actually happens, I expect an enormous sigh of relief from many employers, tinged with annoyance and aggravation over six months spent preparing for a rule that never went into effect.”  Annoyance aside, what should employers do at this point? 

In expectation of the December 1, 2016 deadline, many employers had bumped employee salaries to meet the new requirement, and many more had simply adjusted hour wages and work schedules in an effort to reduce overtime or keep actual wages approximately the same.  As reported in the Wall Street Journal, businesses are now faced with the difficult decision of either walking back pay increases they had already put in place, resulting in angry employees, or eating the expense of changes made in anticipation of a now uncertain requirement.

There is no right or wrong answer, and employers will have to look at a number of factors in making their decision for their particular business.  These factors include, but are not limited to: (1) whether the employer has already begun implementation of salary/exemption changes, (2) whether the employer has already communicated planned salary increases or changes even if it hasn’t actually put them in place, (3) whether the changes impact or potentially impact the company’s benefit plans, (4) the overall economic impact of the change to the client, (5) the workforce morale issues that may be implicated, (6) the temporary nature of the injunction and the fact that it could be appealed and, if so, potentially reversed on appeal.  This is an odd situation where those employers who planned ahead are faced with more issues than those companies that procrastinated and did nothing.


In response to reader requests, if you would like to receive the latest articles from "The Employee With The Dragon Tattoo" by e-mail, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  

Sunday, October 16, 2016

U.S. SUPREME COURT PASSES ON WEIGHTY ISSUE OF OBESITY AS A DISABILITY UNDER THE ADA





The United States Supreme Court has declined to hear an appeal of a decision by the Court of Appeals for the Eighth Circuit, which held that that an obese job applicant was not disabled for purposes of a lawsuit under the Americans with Disabilities Act ("ADA"). By declining to hear the case, the Supreme Court left unresolved an issue splitting federal courts, and leaving employers without guidance as to reasonable accommodations and other requirements under the ADA.
 
Obesity is a subject most employers are likely to face. According to the Centers for Disease Control and Prevention ("CDCP"), more than one-third (36.5%) of U.S. adults qualify as obese (my home state has unfortunately once again tied for the silver medal in this competition). This has a significant impact on employee health-related costs. Obesity-related conditions include heart disease, stroke, type 2 diabetes and certain types of cancer, some of the leading causes of preventable death. The CDCP estimates that the annual medical cost of obesity in the U.S. is $147 billion, and the medical costs for people who are obese are $1,429 higher than those of normal weight.

The story of Morriss v. BNSF Railway Company began in 2011. Melvin Morriss applied for a machinist position with BNSF Railway Company ("BNSF"), and was extended a conditional offer of employment. Because the position was safety sensitive, however, the offer of employment was contingent on a satisfactory medical review.

BNSF doctors conducted two physical examinations of Morriss, who was 5’10" tall. In the first, Morriss weighed 285 pounds and had a body mass index ("BMI") of 40.9. In the second, he weighed 281 pounds and had a BMI of 40.4. BNSF’s policy was not to hire a new applicant for a safety-sensitive position if his BMI equaled or exceeded 40. The company notified Morriss by e-mail that he was "[n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater)", and revoked its conditional offer of employment. Other than being overweight, Morriss had no other health problems, was not diabetic, and experienced no difficulties or limitations in his daily activities.

Morriss filed a lawsuit under the ADA, which was dismissed by a Nebraska federal District Court, which held that Morriss had failed to provide any evidence that his obesity was an actual disability under the ADA. The court first noted that to succeed on this claim, Morriss was required to show that his obesity was a physical impairment, defined under the ADA as a physiological disorder or condition that affects a major body system. Morriss appealed the decision to the United States Court of Appeals for the Eighth Circuit.
 
Prior to the ADA Amendments Act of 2008 ("ADAAA"), the Equal Employment Opportunity Commission ("EEOC") took the position that "except in rare circumstances, obesity is not considered a disabling impairment." However, after enactment of the ADAAA, the EEOC broadened the definitions of what constituted a disability, and concluded that weight outside the normal range, that was the result of a physiological disorder, constituted a disability.
 
However, despite the ADAAA’s more expansive definitions, on appeal, the Eighth Circuit’s opinion rejected Morriss’s arguments, and affirmed the District Court’s holding:  


"Morriss contends that his obesity, in and of itself, is a physical impairment because it has been labeled ‘severe,’ ‘morbid,’ or ‘Class III’ obesity. This contention garners no support from the EEOC regulations, which state that weight is merely a physical characteristic—not a physical impairment—unless it is both outside the normal range and the result of an underlying physiological disorder.


As previously noted, Morriss has provided no evidence to prove that his obesity is the result of a physiological disorder, and so he instead cites the EEOC Compliance Manual, which states that, while ‘normal deviations’ in weight ‘that are not the result of a physiological disorder are not impairments[,] . . . [a]t extremes, . . . such deviations may constitute impairments.’ The Compliance Manual also states that ‘severe obesity,’ namely, ‘body weight more than 100% over the norm,’ is an impairment. We first note that this Compliance Manual pronouncement directly contradicts the plain language of the Act, as well as the EEOC’s own regulations and interpretive guidance, which, as previously explained, all define ‘physical impairment’ to require an underlying physiological disorder or condition.


In sum, we conclude that for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition. This remains the standard even after enactment of the ADAAA, which did not affect the definition of physical impairment. Because Morriss failed to produce evidence that his obesity was the result of an underlying physiological disorder or condition, the district court properly concluded that Morriss did not have a physical impairment under the ADA."


The Eighth Circuit is not the first U.S. appellate court, post ADAAA, to require that obesity or morbid obesity must be caused by a physiological condition to be considered a disability. See EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006).

However, federal courts have ruled otherwise, and held that severe obesity, in of itself, is enough to constitute a disability under the ADA, as amended by the ADAAA.   The case of   EEOC v. Res. For Human Dev., Inc., 827 F.Supp. 2d 688 (E.D. La. 2011) involved a woman named Lisa Harrison, who worked as a prevention / intervention specialist at a non-profit Louisiana addiction treatment facility. In its suit, the EEOC charged the facility violated the ADA when it fired Harrison because of her severe obesity, even though she was able to perform the essential functions of her job.  Before the EEOC filed suit, Harrison died.  In denying the employer’s summary judgment motion to dismiss the case, and sending it to trial, the District Court’s opinion held that:


"A careful reading of the EEOC guidelines and the ADA reveals that the requirement for a physiological cause is only required when a charging party's weight is within the normal range. 29 C.F.R. § 1630.2(h). However, if a charging party's weight is outside the normal range that is, if the charging party is severely obese there is no explicit requirement that obesity be based on a physiological impairment. At all relevant points, Harrison was severely obese; when she was hired, she weighed in excess of 400 pounds, and when she was terminated, she weighed in excess of 500 pounds."

However the case never went to trial. Following the District Court’s ruling against the employer, the addiction treatment facility settled with the EEOC for $125,000.

So after the Supreme Court’s decision to not review the Eighth Circuit ruling in Morriss, where does this leave employers? First of all, employers should not consider the Morriss ruling to mean that obesity can never be a disability under the ADA. As in all such cases, a determination of whether an employee has a covered disability requires an individualized assessment of the particular facts and circumstances. However, the ruling by the District Court in Louisiana also should be troubling to employers, because under that interpretation, more than a third of the adults in this country could conceivably be considered disabled, based on the CDCP’s statistics. Expect to see the Supreme Court forced to weigh-in on this issue in the future. 


Sunday, October 2, 2016

EEOC PAYS SETTLEMENT FOR VIOLATING OVERTIME RULES AND THE NLRB PAYS THE PRICE FOR “ADMINISTRATIVE HUBRIS”


Welcome back to another episode of “Federal Employment Agencies Behaving Badly” and in this week’s episode, we’ll start off with the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing the nation’s anti-discrimination laws.  While the EEOC does not enforce the Fair Labor Standards Act (“FLSA”) and the laws regarding overtime pay, it is required to comply with the FLSA as it relates to the agency’s own employees. As a reminder of this fact, the EEOC has now agreed to pay a $1.53 Million settlement for failing to properly pay overtime to its employees.
The case began back in 2006, and in 2009, an arbitration ruling found the EEOC had violated the FLSA by requiring investigators, mediators and paralegals to work during lunch hours, on weekends, or after hours, and then forcing them to accept compensatory time instead of the overtime pay they were entitled to for their overtime errors.  EEOC employees described what they were subjected to as “forced volunteering.”  The ruling held:
There is an entitlement to overtime, whereas compensatory time operates as an alternative, should the employees request it . . .  Put another way, it is incorrect to view the FLSA as providing non-exempt employees with the option of selecting either overtime or compensatory time. The right is to overtime; compensatory time is the option.”

The arbitration ruling seven years ago urged the EEOC and the union representing the federal employees to reach a settlement, however, an agreement was not reached until September 22, 2016. 
Despite the settlement, the union was critical of the EEOC’s role in the long delay toward resolving the dispute.  According to National Council of EEOC Locals, No. 216 President Gabrielle Martin “It has been very frustrating to employees that this case has gone on for a decade during which employees retired or unfortunately passed away . . . It is a sad irony that the agency charged with preventing discrimination against workers violated the rights of its employees.”
Our next segment deals with the National Labor Relations Board (“NLRB”), which is the federal agency charged with enforcing U.S. labor law and investigating and remedying unfair labor practices.  A federal appeals court judge has now ordered the agency to pay a company nearly $18,000.00 in legal fees for engaging in “bad faith litigation” and engaging in “administrative hubris”
In Heartland Plymouth Court MI, LLC v. NLRB, a company sought legal fees after it had successfully appealed an NLRB ruling that incorrectly found the company had violated a collective bargaining agreement by reducing employee hours.  In the opinion, Judge Janice Rogers Brown of the United States Court of Appeals for the D.C. Circuit found that the NLRB had taken positions unsupported by the law, which placed the employer in the untenable position of having to incur the costs of an unjustified settlement demand, or the legal costs of appealing the NLRB’s improper ruling:
  Facts may be stubborn things, but the Board’s longstanding “nonacquiescence” towards the law of any circuit diverging from the Board’s preferred national labor policy takes obduracy to a new level. As this case shows, what the Board proffers as a sophisticated tool towards national uniformity can just as easily be an instrument of oppression, allowing the government to tell its citizens: “We don’t care what the law says, if you want to beat us, you will have to fight us.”  It is clear enough that the Board’s conduct was intended to send a chilling message to Heartland, as well as others caught in the Board’s crosshairs.
 
Let the word go forth: for however much the judiciary has emboldened the administrative state, we “say what the law is.” In other words, administrative hubris does not get the last word under our Constitution. And citizens can count on it.
 

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  

 A reader of this blog recently asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks! 



Thursday, September 29, 2016

NLRB CONTINUES AGGRESIVE CRACKDOWN ON EMPLOYEE HANDBOOKS


As The Employee With The Dragon Tattoo first reported back in 2014 and 2015, the National Labor Relations Board (“NLRB”) has taken a highly aggressive position against many commonly utilized employee handbook policies.  The NLRB alleges that overbroad employment policies could have a chilling effect on employees’ concerted activities protected by Section 7 of the National Labor Relations Act (“NLRA” or “the Act”).  This applies whether employees are members of a union or not.  Under the NLRB’s 2015 interpretive guidelines, an employer’s policy will violate the NLRA if it could simply be “construed” as restricting Section 7 rights.
The NLRB has now taken it one step further.  In a recent ruling earlier this Summer, an NLRB Administrative Law Judge (“ALJ”) held that a California casino’s handbook policy that prohibited employees from conducting “personal business” while on the job on company property could be construed to be illegal under the Act.  In the ruling, the ALJ held:

[T]he prohibition against conducting "personal business" on company property and "while at work" can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on non-work time. The rule makes it clear that personal business is the opposite of "Casino Pauma business," thus including communications about unions or complaints about working conditions in the "personal business" category. The restriction of protected activity "while at work" is also too broad because it is not properly restricted to "work time" and thus bans protected activity during  nonwork time, such a time on lunch, breaks and before and after work.
 
At the least, the prohibitions against conducting "personal business" in Rule 2.19 are ambiguous insofar as that term may be read to include discussions about unions and other concerted activity; the rule thus puts employees at risk if they guess wrongly about what the Respondent means by "personal business." (citations omitted).


The ALJ’s opinion also noted that under the Act, employees are generally free to distribute union literature on company property during such nonwork time as long as it is in nonworking areas of the company facility.
In its 2015 interpretive guidelines, the NLRB listed a series of other commonly implemented employment policies that it maintained were illegally overbroad.  Examples of such policies include:

·         Do not discuss "customer or employee information" outside of work, including "phone numbers [and] addresses."

·         "You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer's] associates was obtained in violation of law or lawful Company policy)."

·         Prohibiting employees from "[d]isclosing ... details about the [Employer]."
·         "Sharing of [overheard conversations at the work site] with your co-workers, the public, or anyone outside of your immediate work group is strictly prohibited."
·         "Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.. .. Do not discuss work matters in public places."
·         "[I]f something is not public information, you must not share it."
The ALJ’s opinion that a policy against conducting personal business “while at work” likely seems nonsensical to employers who are legitimately trying to prevent employees from spending their work hours on Facebook, shopping on Amazon, or chatting with friends on the phone.  However, this latest ruling is a wake-up call for employers to review their employee handbooks to address any purported ambiguity that the NLRB might “construe” as being overbroad.
A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  

 A reader of this blog recently asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks! 



Saturday, September 24, 2016

THE EEOC GETS A DREAD (LOCKS) RULING


Back in October 2013, The Employee With The Dragon Tattoo told you about how the Equal Employment Opportunity Commission ("EEOC") had filed suit against Catastrophe Management Solutions Inc. (“CMSI”), an Alabama based insurance claims company.  The lawsuit alleged the company violated Title VII of the Civil Rights Act by discriminating against an African-American job applicant on the basis of race because she wore dreadlocks. The case highlighted the employment issues that can arise over workplace grooming policies, and also sparked sharp criticism against the EEOC’s position from the business community, as well as on the pages of the Wall Street Journal.
 
However, in a recent ruling, the U.S. Court of Appeals for the Eleventh Circuit has upheld the employer’s workplace ban on dreadlocks and rejected the EEOC’s hard-edged position that a mutable choice, such as hairstyle, equals an immutable trait such as race.
 
The case began back in 2012.  Chastity Jones was offered a position with CMSI as a customer service representative. At the time of her interview, Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.” CMSI’s grooming policy required employees to be “dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines . . . [H]airstyles should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable.”  When the manager in charge told Jones that the company did not allow dreadlocks and that she would have to change her hairstyle in order to obtain employment. Jones declined to do so, and the manager immediately rescinded the job offer.
 
In the lawsuit, the EEOC argued that CMSI’s ban on dreadlocks and the imposition of its grooming policy on Jones discriminated against African-Americans based on physical and/or cultural characteristics.  At the time of the filing of the lawsuit, Delner Franklin-Thomas, district director for the EEOC's Birmingham District Office, stated, “Generally, there are racial distinctions in the natural texture of black and non-black hair. The EEOC will not tolerate employment discrimination against African-American employees because they choose to wear and display the natural texture of their hair, manage and style their hair in a manner amenable to it, or manage and style their hair in a manner differently from non-blacks.” 

The lower federal court later dismissed the lawsuit on the basis that unlike race, “a hairstyle, even one closely associated with a particular ethnic group, is a mutable characteristic.”  The EEOC appealed to the Eleventh Circuit, arguing that dreadlocks are a natural outgrowth of the immutable trait of race and that a policy forbidding dreadlocks could be a form of racial stereotyping.
 
In his recent article discussing the Eleventh Circuit’s ruling against the EEOC, my colleague Day Peake, in Phelps Dunbar’s Mobile, Alabama Office, explained the appellate court’s rationale:
 
The Eleventh Circuit held that Title VII’s prohibition on intentional discrimination does not protect hairstyles culturally associated with race. Rather, it prohibits intentional discrimination based on immutable traits such as race, color or national origin. By this rationale, the court explained, discrimination based on black hair texture, such as a natural Afro, would violate Title VII. A prohibition on an all-braided hairstyle, however, addresses a mutable choice and does not implicate Title VII’s proscription of intentional race discrimination.
This decision offers an important exploration of the definition of “race,” which is not defined in Title VII. EEOC relied on its Compliance Manual definition, which provides that “Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech.” The court chose not to give this guidance much deference or weight in its analysis because the court found the guidance to be contradictory to a position taken by EEOC in an earlier administrative appeal.
The Eleventh Circuit also rejected and criticized the EEOC’s argument on appeal that CMSI’s grooming policy was illegal under a theory of disparate impact, which does not require proof of discriminatory intent, as opposed to disparate treatment, which would constitute intentional discrimination.
In addition to a victory for CMSI, the Eleventh Circuit also vindicated the Wall Street Journal’s assessment of the EEOC’s lawsuit back in 2013:
Apparently Ms. Franklin-Thomas has never seen dreadlocked whites (like the Counting Crow's Adam Duritz) or Latinas (like Shakira). Catastrophe's policy is in fact racially neutral because it enjoins all employees, regardless of race, "to be dressed and groomed in a manner that projects a professional and businesslike image," including "hairstyle." The company determined that dreadlocks don't meet that standard, as is its right . . . The larger travesty of this case and other misbegotten EEOC crusades of late is that they take time and resources away from individuals with legitimate claims of employment discrimination. Banning dreadlocks doesn't qualify.
Notwithstanding the Eleventh Circuit’s ruling, issues of workplace grooming and dress codes are often case and fact specific, and can easily turn into a litigation minefield, particularly over issues of religious accommodation.  This was highlighted recently in the United States Supreme Court’s ruling in EEOC v. Abercrombie & Fitch Stores (2015). 
Employers should carefully and regularly review such policies, and consult with counsel prior to taking adverse employment actions based on violations of such policies that might implicate a protected class of employees under Title VII.
A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  
 A reader of this blog recently asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks! 

 


Tuesday, September 20, 2016

EEOC SUES EMPLOYER OVER POSITIVE DRUG TEST FOR PRESCRIPTION OPIOID PAINKILLER


            In recent years, the abuse of prescription opioid pain medication has become a widely reported national epidemic. The New England Journal of Medicine reports millions of Americans are addicted to prescription pain medications, and The Centers for Disease Control and Prevention finds that more people died from drug overdoses in 2014 than in any year on record, with the majority of deaths from opioids, and 78  Americans die every day from an opioid overdose.  Prescription opioid abuse also has been linked to the national increase in heroin addiction.  Commonly prescribed opioid painkillers include Hydrocodone (Vicodin), Oxycodone(OxyContin, Percocet), morphine (Kadian, Avinza) or medications containing Codeine.
            However, a recent lawsuit by the Equal Employment Opportunity Commission (“EEOC”) against a Sioux Falls, South Dakota Casino reveals the tension between an employer’s concern about prescription drug abuse in the workplace and complying with the Americans with Disabilities Act (“ADA”).
            According to the facts given in the lawsuit, Kim Mullaney applied for a position with Happy Jack’s Casino.  The EEOC’s lawsuit states that Mullaney had a recognized disability under the ADA involving chronic pain, and had a valid prescription for the prescription drug Hydrocodone.  Mullaney received a job offer from Happy Jack’s, but the offer was withdrawn after a routine pre-employment drug test came back positive for Hydrocodone.  According to the lawsuit, Mullaney told Happy Jack's Casino that the test reflected prescription drugs that she took for her disability, and even though she told them that she would provide additional information if needed, Happy Jack's Casino refused to hire her.  According to the Complaint:

Because [Happy Jack’s] didn’t offer Mullaney a chance to offer proof that the drugs were prescribed by a doctor for a medically-recognized condition, the company violated the Americans With Disabilities Act.  Blanket drug-testing rules that cover legally-prescribed medications do not comport with the law


            Typically, most company drug testing policies include provisions that allow employers to either disclose their legally prescribed prescription in accordance with the ADA, or to otherwise explain or contest a positive test result.  However, this lawsuit should service as a notice for employers to review their current drug testing policies.  This workplace issue is further complicated by the ongoing decriminalization of marijuana in the United States.   Approximately half the states already have legalized marijuana, for either medical or recreational use, and another eight states will be voting on the issue in November.
 

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

 A reader of this blog asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks! 

 


Wednesday, August 31, 2016

NON-COMPETE AGREEMENTS UNDER ASSAULT



In my blog of May 26, 2016, I discussed a report released by the White House, highly critical of the non-compete agreements commonly used by American employers.  I noted at the time that the Administration could not take any direct action, because such agreements are governed under the individual laws of each state, and are not governed by federal law.  However, the report made it clear that the White House intended to:
[I]dentify key areas where implementation and enforcement of non-competes may present issues, examine promising practices in states, and identify the best approaches for policy reform”, suggesting plans to lobby state legislators and policymakers in the individual states.

It appears that the White House’s efforts already have borne fruit in the President’s home state of Illinois. Earlier this month, Illinois Governor Bruce Rauner signed into law the “Illinois Freedom to Work Act”, which will go into effect January 1, 2017.  The Act would prohibit employers from requiring employees to sign non-compete agreements if they make less than $13 per hour.  The new law is not supposed to have any effect on the enforceability of confidentiality agreements designed to protect trade secrets or other confidential business information.
The recent uproar over non-competes began over a sandwich, or more accurately, a sandwich maker.  Back in 2014, I reported how sandwich chain Jimmy John’s had attracted some unwelcome attention by requiring low-level employees to sign two-year non-compete agreements as a condition of employment.  After the story first broke nationally, Congressional Democrats sent a letter to the Federal Trade Commission (“FTC”)  and the U.S. Department of Labor (“DOL”), describing the restrictive covenants as “clearly anti-competitive and intimidating to workers.” The House Democrats asked for the FTC and the DOL to investigate the sandwich chain. 
Illinois Attorney General Lisa Madigan upped the ante, and on June 8, 2016, filed a lawsuit against Jimmy John’s, alleging the sandwich maker’s non-compete agreements were illegal under Illinois law “[b]y locking low-wage workers into their jobs and prohibiting them from seeking better paying jobs elsewhere, the companies have no reason to increase their wages or benefits.” Under Illinois law, non-compete agreements must be premised on a legitimate business interest and narrowly tailored in terms of time, activity and place. The State of New York was apparently about to take similar legal action, however, Jimmy John’s reached an agreement in June with New York Attorney General Attorney General Eric Schneiderman, in which the sandwich chain agreed to stop including sample non-compete agreements in hiring packets it sends to its franchisees. Jimmy John’s also agreed to inform its New York franchisees that the Attorney General has concluded the non-compete agreements are unlawful and should be voided.
It bears mention that in New York and Illinois, and most other states, non-compete agreements, in of themselves, are not illegal and are enforceable under the appropriate circumstances.  The real focus here, and the basis for the hostility from elected officials, is requiring low-level and low-paid employees to sign such agreements without a legitimate business purpose.  I anticipate more states will be taking legislative action similar to the new Illinois law.
While such restrictive employment covenants are generally not favored by the courts, they will be enforced if the terms of the agreement are reasonable under the particular circumstances.  Generally, there are three requirements: (1) the employer has a valid interest to protect; (2) the geographic restriction is not overly broad; and (3) a reasonable time limit is given.  The employer bears the burden of proving the reasonableness of the agreement.  The reason these types of agreements are construed very narrowly is that most courts recognize that an employer is not entitled to protection against ordinary competition from a departing employee.  Non-compete agreements can be valuable tools to protect an employer’s legitimate business interests, but generally, it is inadvisable to have low level employees sign such agreements, because they are typically not going to possess the confidential information that would warrant enforcement of the agreement. 
In most of the matters I’ve handled involving non-compete agreements, the employees in question were either highly trained individuals in technical or creative fields, with direct access to their employer’s trade secrets, or were high level sales people with similar access to confidential customer information.  I would be hard pressed to come up with a scenario where a fast food employer would legitimately need  to have a crew worker enter into a non-compete agreement, no matter how good the sandwich.
The lesson to be learned is that the use of these agreements should be confined to key employees whose knowledge of trade secrets and other confidential information could cause serious damage if they went to work for a competitor.  In light of the recently enacted federal Defend Trade Secrets Act ("DTSA") of 2016, businesses now have greater protection, but need to take affirmative steps as soon as possible to take advantage of all the provisions of the new law.  For more information on DTSA, see my recent article in the Mississippi Business Journal.