By: Ogletree Deakins

Last month, employers received a little more help from the National Labor Relations Board (NLRB) in formulating social media policies that pass muster under scrutiny from the Board. On October 19, 2012, the Associate General Counsel (AGC) for the NLRB’s Division of Advice provided a useful and well organized opinion in response to a request from an NLRB Regional Director. The request was for advice as to whether an employer’s social media policy violated the National Labor Relations Act (NLRA), and whether an employee’s termination because of a violation of that policy violated the Act. In that memorandum, the AGC concluded that the employer’s policy was not overly broad and did not violate the NLRA. He further concluded that the employer did not unlawfully discharge an employee for an electronic posting that violated the policy. In re: Cox Communications, Inc. Case 17-CA-087612 (October 19, 2012)

The situation arose when an individual, employed by Cox Communications, Inc. as a technical support representative, posted a comment to his “Google+” account, in response to a customer’s negative and very personal comment to him during a troubleshooting phone call. The posting included the “F-word” directed to the customer. A supervisor saw the posting and reported it to management. The employee was suspended and an investigation was undertaken during which it was discovered that the employee had engaged in other, similar postings that also included lewd language which disparaged customers. The employee ultimately was fired for his Google+ postings. In response, he filed a Charge with the NLRB, alleging that the company’s social media posting violated his rights under the NLRA.

An employer violates Section 8(a) of the NLRA if its policy would “reasonably tend to chill employees in the exercise of their Section 7 rights.” Section 7 of the Act allows employees to engage in protected concerted activity, in order to allow them to discuss terms and conditions related to employment. The NLRB has developed a two-step process to determine whether a policy might violate Section 8. First, it determines whether the policy violates the Act by directly restricting Section 7 protected activities. Second, if the policy does not explicitly restrict those activities, the Board reviews it to determine whether it still may violate the Act if an employee could “reasonably construe” the language as prohibiting protected activity; if the policy was promulgated in response to union activity; or if the policy has been applied to restrict such activity. While the Board will not find a violation simply because a policy can conceivably be read to restrict protected activity, it can (and typically will) find a violation if a policy contains no limiting language or context that would clarify to employees that their Section 7 rights are not restricted.

The Cox Communications social media policy included acceptable limiting language and context. Its restrictions were spelled out in detail: “DO NOT make comments or otherwise communicate about customers, coworkers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age race, religion, sex, sexual orientation, gender identity or expressions, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state or local laws, regulations or ordinance.” In addition, the policy included a “savings clause” that stated specifically that nothing in the policy “is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment.”

In his analysis, the AGC pointed to the detailed policy provisions as providing context regarding the “reasonableness” of the policy. Whereas a rule simply proscribing “negative conversations” about manager, with no further clarifications or examples, would be unlawful because of a potential chilling effect on protected activity, Cox’s policy provided a lost list of “plainly egregious conduct,” and “clearly would not be reasonably understood to restrict Section 7 activity.”

The AGC also pointed out the policy’s “savings clause . . . further ensures that employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict Section 7 activity.” Based on the wording of the policy, the Board concluded that the termination of the technical support representative was lawful, because the Google+ post was not concerted activity for mutual aid and protection within the meaning of Section 7 of the NLRA. Concerted activity is defined to include “circumstances where individual employees seek to initiate or to induce or to prepare for group action.” Clearly, the employee’s vulgar comments directed at a customer in anger, and not on behalf of coworkers or others, and could not be construed as concerted activity. Further, the company’s investigation of the matter before firing the individual evidenced a considered and thorough review of the situation.

Takes-aways from this matter are clear: (1) social media policies should include limiting language or other context that would clarify to employees that Section 7 rights are not restricted; (2) a “savings clause” that specifically states that the policy is not meant to prevent concerted communications can support a Board finding that the policy is lawful; and (3) a practice of prompt and thorough investigation of an employee’s posting, including objective and thorough documentation, prior to taking adverse action against the employee will help to support the appropriateness of the action.
 

Neither Title VII of the Civil Rights Act nor the Americans with Disabilities Act (ADA) specifically prohibits discrimination against individuals who may be victims of domestic or dating violence, sexual assault, or stalking. However, a recent fact sheet/guidance issued by the Equal Employment Opportunities Commission (EEOC) has employers scrambling to update anti-discrimination training to reflect the examples listed in that guidance, and to make managers aware of circumstances under which such individuals might be the targets of discrimination under those federal statutes. While discrimination in a particular situation must be determined through a case-by-case analysis of the facts, the EEOC sets forth numerous examples involving domestic violence and sexual assault victims, and which include disparate treatment, harassment and retaliation scenarios under both Title VII and the ADA.

The examples of employment scenarios that may violate Title VII include: an employer’s decision to terminate an employee who was subjected to domestic violence because of fears related to the “drama battered women bring to the workplace” (disparate treatment); a supervisor who learns that an employee recently was subjected to domestic abuse and, viewing her as vulnerable, begins to make sexual advances toward her (harassment); and an employee who, subsequent to filing a complaint alleging that she was raped by a manager while on a business trip, is reassigned to less favorable projects (retaliation).

Examples of decisions that may violate the ADA are similarly varied and, in most cases, straightforward. They include: an employer who learns that an applicant was a witness in a rape prosecution and received counseling for depression, and decides not to hire her because she may need time off for further treatment of that depression (perceived disability); a supervisor who tells an employee’s co-workers about the employee’s PTSD resulting from incest (disclosure of confidential information); and an employee who tells her supervisor that she is going to complain about his dissemination of her medical information, and is told that if she does, she will not get a pay raise (retaliation).

However, the examples also include one scenario that may not immediately strike employers as a clear ADA violation: an employee who has no accrued sick leave and is not eligible for FMLA requests a scheduling change or an unpaid leave in order to get treatment for depression following a sexual assault during a home invasion, but is denied that leave because the company “applies leave and attendance policies the same way to all employees.” Because most employers typically are reminded by both HR and legal that employees should be treated in a consistent manner, and that individuals in protected categories should not be treated differently than non-protected similarly situated individuals, this scenario may not seem to be an obvious example of an ADA violation. However, a reasonable accommodation is a change in the way things usually are done and can include modified work schedules, reassignment to a vacant position, or time off for medical treatment. This last scenario clearly indicates that the EEOC has an expectation that employers will change their consistently applied leave and attendance policies, if such change is necessary to accommodate the need for psychological treatment stemming from an incident of sexual assault or domestic violence.

Employers should, in fact, begin to add the issues raised in the EEOC’s recent guidance to the anti-harassment and non-discrimination training that is provides to managers and supervisors, in order to avoid inadvertent violation of Title VII or the ADA. Fortunately, the EEOC’s Q&A format provides clear examples that easily can be incorporated in such training.

 

The 8th U.S. Circuit Court of Appeal has determined that an employer’s permanent modification of employees’ “workweeks” in a way that reduced the number of overtime hours did not violate the Fair Labor Standards Act (FLSA). Abshire v. Redland Energy Services, IIC, 8th Cir., No. 11-3380, October 10, 2012.

The FLSA states that workers who are not exempt from its provisions and who work for more than 40 hours during a workweek must be compensated at a rate “not less than one and one-half times the regular rate.” In 2011, a district court in Arkansas granted summary judgment to Redland Energy Services, a company which had changed the designation of its workweek in a way so that fewer work hours qualified as overtime. While the employees argued that the company’s modification of the work schedules violated the FLSA, both the Department of Labor investigator and the district court determined that Redland did not, in fact, violate any provision of the FLSA. On appeal, the Eighth Circuit agreed.

Redland drills and services gas wells in Arkansas, and used a Tuesday-to-Monday workweek to calculate pay and overtime owed to the drill rig employees. Each drill rig crew worked 12-hour shifts for 7 consecutive days, followed by 7 consecutive days off, and had one weekend off every two weeks under that schedule. Other non-drill rig employees used a Sunday-to-Saturday workweek, and most of those employees worked regular Monday through Friday jobs, with weekends off.

In May 2009, Redland announced a permanent change to pay the drill rig employees on a Sunday-to-Saturday workweek calculation, which meant that although they still would work Tuesday-to-Monday for 7 days, with the next Tuesday-to-Monday week off, their workweeks would now be split into 2 payroll periods, reducing the amount of overtime. On the original schedule, they would work at least 84 hours in every other payroll week, with the following payroll week off; on the revised schedule, they would alternate between a 5-day, 60-hour week, and a 2-day, 24-hour week, decreasing their overtime from 44 hours in every other work week to 20 hours in every other work week. (Take my word for it – I drew it all out on a calendar just to confirm this!)  A group of employees brought a lawsuit, alleging that the FLSA prohibits employers from changing an existing workweek for the purpose of reducing overtime hours.

In support of its motion for summary judgment, Redland stated that in addition to reducing overtime pay, the payroll schedule modification increased efficiency by reducing payroll calculation time and payroll expense. The Eighth Circuit agreed that the FLSA does not prescribe how an employer must establish its “workweek,” and that that Act does not require that the workweek begin on any particular day. The issue in this case is whether the FLSA prohibits an employer from changing a workweek designation in a way that is more favorable to the employer. The Court determined that the FLSA was not designed to “maximize the payment of overtime,” and that, therefore, an employer’s effort to reduce its payroll expense is not contrary to the purpose of the FLSA.

The moral of this story is that as long as the modification made to a workweek is permanent, and as long as the change is implemented in accordance with the FLSA (which would require that overtime worked during the change-over must be paid appropriately), an employer’s reasons for adopting the change are irrelevant. However, before moving forward with any such revision of workweek designations, employers should review their circumstances with counsel to assure compliance during the transition period, and ensure that the change is one that will not be reversed in the short-term, which may invalidate the transition entirely.
 

On September 28, 2012, a three-member panel of the National Labor Relations Board (NLRB) affirmed the decision of an Administrative Law Judge (ALJ) who upheld a car dealership’s firing of a salesperson that was based on a Facebook posting. But it also found a way to include its Notice of Employee Rights poster in the resolution of the case. Karl Knauz Motors, Inc. Case 13-CA-036452 (Sept. 28, 2012).

In May of 2011, NLRB issued a complaint (and accompanying press release) alleging unlawful termination of the car salesman for posting photos and comments on Facebook.  The complaint, which was similar to other complaints filed by the NLRB in the months prior to that case, alleged that a Chicago area BMW dealership illegally fired the employee after that individual posted information on his Facebook page that arguably was critical of the dealership.

In that case, the BMW dealership’s salesperson was unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. At the time, a Huffington Post reporter summarized the issue this way: “[The salesman] and a few co-workers apparently felt that Sam’s Club hot dogs and bottled water were no way to hype a luxury car — and they thought their sales might suffer because of it. The salesman’s critical commentary [on his own Facebook page] included photographic evidence of the unremarkable snacks.”  Other employees had access to that Facebook page. When the dealership’s management asked the salesman to remove the posts, he immediately complied. Nevertheless, shortly after a subsequent meeting with his managers, the employee was terminated.

However, the employer/dealership stated that in reality, the salesman was fired because he also posted photos of an embarrassing (and potentially dangerous) accident involving a salesperson and vehicle from a neighboring car dealership, also owned by his employer. That situation involved a saleswoman who imprudently had allowed the 13 year old son of a customer to sit behind the wheel of a luxury SUV that had been purchased by the young person’s father. Apparently, the young man threw the car into gear and hit the gas, running over his father’s foot and jumping a wall, landing in a pond and damaging the vehicle.

The matter was heard by an Administrative Law Judge, who determined that the Facebook posting related to the snack issue was protected concerted activity that discussed “terms and conditions” of employment. Under the NLRA, employee communications about work-related issues are entitled to protection, and employers are prohibited from stifling that activity. However, the ALJ went further and determined that the employee actually was fired for his second posting, in which he mocked a dangerous situation and embarrassed others – and neither activity is protected by the NLRA. Therefore, the ALJ upheld the firing. That decision now has been affirmed by the NLRB.

In this era of increased focus on employer limitations on electronic communications, however, the dealership hasn’t gotten away unscathed. Two of the three members of the NLRB panel that heard the case found that the employer’s “Courtesy” policy — which stated that “Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” – violated the NLRA because the rule might “chill” employees’ protected statements related to working conditions, or in seeking the support of others to improve those conditions.

As a penalty for that violation, the Board has required the dealership to rescind the offending policies and to notify employees of that rescission. The notification is to be done by posting a specific form provided by the NLRB and entitled “Notice to Employees.” That notice specifically informs employees of their right to “form, join, or assist a union.” Worth noting is the fact that this mandated Notice contains wording similar to the “Employee Rights Notice” set forth in a proposed NLRB rule that has been the subject of legal challenges since December of 2010. While those legal challenges have kept the rule from being implemented, the NLRB has taken every opportunity to include the posting as part of any penalty imposed on employers who are found to have violated the NLRA by restricting protected communications among employees. To avoid that scenario, employers should take the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic communications, especially if those communications involve personal postings.
 

The 8th U.S. Circuit Court of Appeals recently addressed an issue of concern frequently raised by employers: whether allowing an employee to move from rotating shifts to straight daytime work is a required “reasonable accommodation” under the ADA. Kallail v. Alliant Energy Corporate Services, Inc., 8th Cir., No. 11-2202, September 4, 2012. In that case, the Court held that the rotating shift was an essential function of the relevant job, and that therefore, the answer was No.

Terri Kallail was employed by Alliant Energy Corporate Services (AECS), and held the position of Resource Coordinator at a company Distribution Dispatch Center (DDC) in Cedar Rapids, Iowa. Employees at the DDC monitor the distribution of electricity, gas, and steam throughout a service area, and handle outages and other emergency situations to maintain the integrity of the systems. In order to provide adequate coverage, Coordinators at the DDC work in teams of two on 9-week schedules that rotate between 8- and 12-hour shifts, and between day and night shifts. The dual purposes of the rotating shifts were to provide adequate experience and training for the Coordinators, and to enhance non-work life by spreading the less desirable shifts among all Coordinators on a rotating basis.

Kallail is a Type I, insulin dependent diabetic. During the fall of 2004, she was having increased difficulties managing her diabetes while working the rotating shifts. In November of that year, her physician completed a medical certification that recommended that Kallail work only straight day shifts. That request was denied in a letter in which AECS stated that the Coordinator’s essential functions include rotating shifts to support operations 24 hours a day, 7 days a week to meet company safety requirements. However, as an alternative, AECS said that it would consider reassigning Kallail to a vacant position with a straight day shift. In August 2005, the company identified three such positions, all of which were rejected by Kallail, because one required walking, which she had difficulty with, one paid less than the Coordinator position, and the third would have required to her relocate or commute a significant distance.

In September 2005, Kallail took FMLA leave for surgery. While on leave, she applied for a position two job grades higher than the Coordinator position, and was unsuccessful. Kallail returned from leave in February 2006 with a restriction that she work only an 8-hour day shift schedule until May. At that point, AECS gave to Kallail a temporary light-duty assignment that was different from her Coordinator duties. When the light-duty assignment expired, Kallail’s physician again recommended that Kallail be permanently limited to straight day shifts to protect her from medial risks and complications in the future. Although AECS offered a number of other positions to Kallail, Kallail refused them and instead, began to receive long term disability benefits in January 2007.
She then filed a charge of discrimination with the EEOC, and ultimately filed a lawsuit, alleging that AECS failed to provide her with a reasonable accommodation. The district court granted summary judgment in favor of AECS, and that decision was upheld by the Eighth Circuit on appeal.

The American with Disabilities Act (ADA) makes it unlawful for a private employer to discriminate against any “qualified individual on the basis of a disability.” Discrimination under the ADA specifically includes failure to make a “reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.” To prove oneself to be a qualified individual under the ADA, an employee must have the requisite skill and training for the position, and must be able to perform the essential functions of the position with or without accommodation.

In reviewing the lower court’s dismissal of the case, the Eighth Circuit began by reviewing the issue of whether Kallail could perform the essential functions of her Coordinator position, with or without an accommodation – if she could not, she would be unable to prove herself to be a “qualified individual with a disability” who was entitled to the protections of the ADA.
The Court first determined that the rotating shift was an essential function of the Coordinator position. It found that AECS had included the rotating shift in its written job description, and that when the company had discussed with employees a proposal for creating two permanent straight day shift positions, employees objected. (Avoiding employee complaints and maintaining morale are legitimate reasons for a company’s scheduling decision.) Further, because courts allow companies to determine the most productive or efficient shift schedule for a facility, the Eighth Circuit determined that AECS’s designation of the rotating shift schedule as a critical element of the Coordinator position made that schedule an essential function of the position. Because Kallail could not work a rotating shift, she was unable to fulfill the essential function of her job without an accommodation.

The Eighth Circuit then looked at whether Kallail could do the job with an accommodation. To show that such was possible, Kallail would have to proffer a reasonable accommodation that would allow her to perform the essential functions of the job. The reasonable accommodations proffered by Kallail were the straight day shift, and the promotion to a higher grade day-shift job. The Court began by pointing out that while job restructuring is a possible accommodation under the ADA, an employer does not have to “reallocate or eliminate the essential functions of a job to accommodate a disabled employee.” Therefore, Alliant did not have to allow Kallail to work the straight day shift that she requested. Next, the Court stated that “reassignment to a vacant position may be a reasonable accommodation.” Because Alliant offered a number of positions to Kallail, and Kallail did not provide evidence that the positions were inferior, or that a more suitable job was vacant, there was no requirement that Alliant provide a promotion to put Kallail into a day-shift job.

This case is an important one for employers because the company in this situation provided a number of opportunities to allow Kallail to return to work under circumstances that made allowance for her impairment. Further, it had a detailed written job description that spelled out the essential functions of the job, precluding any dispute on that issue. Finally, it engaged in the required interactive process by working with Kallail to try to identify other positions that were available and for which she was qualified. Kallail’s unwillingness to accept those positions absolved AECS from liability in this circumstance.
 

Recently, the National Labor Relations Board (NLRB) has issued a number of decisions restricting the ways in which employers can limit employee electronic communications, even when those communications may damage the company or another employee’s reputation.  For many employers, those decisions have caused serious consternation, as companies now focus on what can and cannot be included in handbooks and policies.  Many companies feel as if they are being faced with a decision between risking a violation of the National Labor Relations Act (NLRA) and protecting proprietary information, including confidential personnel information.   

Earlier this month, the NLRB found that a retail company’s handbook policies, which prohibited certain employee postings and communications, violated Section 8 of the NLRA.  Costco Wholesale Corp., 358 N.L.R.B. No. 106, September 7, 2012.  Section 8 states that it is an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of the NLRA].”  Section 7 provides to all employees – unionized and non-unionized – the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In that case, an employer (Costco) maintained a nationwide handbook for its non-union employees that set out the terms and conditions of employment for those individuals.  The handbook included rules that prohibited: “unauthorized posting, distribution, removal or alteration” of material; discussion of “private matters” of other employees, including sick days, leaves of absence, and personal health information; sharing of “sensitive information” such as employee personal health information, social security numbers, and financial information; and sharing “confidential” information such as employees’ names, phone numbers, addresses, and e-mail addresses.  It also included a specific policy prohibiting electronic postings that “damage the Company, defame any individual or damage any person’s reputation.” 

During the course of an organizing drive to unionize a Costco facility in Milford, Connecticut, unfair labor practice charges were filed in which it was alleged that the Company was maintaining policies that violated the NLRA.  An Administrative Law Judge held a hearing and determined that the policies limiting the sharing of information violated the NLRA, but that the policy prohibiting electronic postings that might damage the Company or defame individuals did not.  Upon review by a three-member panel, the NLRB agreed with the ALJ and adopted his findings that the policies against sharing information violated the NLRA.  However, the panel disagreed with the ALJ regarding the rule prohibiting statements that damage the Company or any person’s reputation, finding – without elaboration – that “employees would reasonably construe this rule as one that prohibits Section 7 activity.”  Therefore, according to the NLRB, an employer’s general prohibition of statements that could damage or defame the company or others could be viewed by the NLRB as violations of employees’ right to “concerted activity.” 

In its opinion, however, the NLRB made statements that could provide to employers a “safe harbor” which may protect a company from allegations that a policy has prohibited employees’ concerted activities.  First, the panel pointed out that Costco’s “broad” prohibition against making statements that damage the Company or any person’s reputation “clearly” encompasses concerted communications, but pointedly adds that “there is nothing in [Costco’s] rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.” The panel goes on to add that Costco’s rule “does not present accompanying language that would tend to restrict its application.”   Those two statements, taken together, flag the fact that, had the rule included language specifically exempting concerted protected activities, such as communications that were critical of Costco’s treatment of employees, or had it prohibited only egregious conduct, such as sabotage or sexual harassment, the NLRB may have found the policy narrowly drawn and not in violation of Section 8. 

It is clear from this decision that the NLRB will not condone company policies that broadly prohibit either the “unauthorized posting, distribution, or alteration” of information or materials, or the sharing or storing of information related to the terms of employment (including wage information), even if that information is viewed as confidential by an employer.  Taken in conjunction with previous NLRB decisions and opinions, this case makes it imperative that handbooks and policies are narrowly drafted to address specific prohibited behavior, and that the language of the policies include the business justification for such prohibitions, in order to avoid unanticipated liability for violation of the NLRA.

 

An issue that confounds employers on a regular basis is whether the discharge of an employee who is unable to return to work after a medical leave will violate the American with Disabilities Act (ADA). Most employers understand their obligation to engage in an interactive process to determine a reasonable accommodation that will assist the employee in returning. But questions often arise regarding whether to allow the employee a reprieve from undertaking the essential functions of the job to which he or she is returning, and whether that reprieve can be for an indefinite period of time.

The 10th U.S. Circuit Court of Appeals recently addressed that question in the context of a county employee who, because of back surgery and an ongoing joint dysfunction, was unable to undertake the essential functions of her position as an Adult Intensive Supervision Officer. In that case, the court determined that the county’s decision to discharge the employee when she was unable to return to work after a medical leave did not violate the ADA. Robert v. Board of County Commissioners of Brown County, Kansas, et al, 10th Cir., No. 11-3902, August 29, 2012.
Catherine Robert’s job as a supervisor of felony offenders included 18 “essential functions,” as listed in her written job description. Those functions included performing drug screenings, ensuring compliance with court orders, testifying in court, and “field work,” which consisted of visiting the homes of individuals who had been released from prison to assist them in their reentry into society. In 2004, Roberts was diagnosed with sacroiliac joint dysfunction, which ultimately required surgery, after walking became impossible for her. In the weeks immediately prior to the April 2004 surgery and during her recovery, Roberts was allowed to work from home, auditing case filed for closed cases. During this time, she could not engage in field work, and was unable to supervise drug screenings. Instead, that work was shouldered by her co-workers, creating tension within the small group, ultimately leading to the resignation of one member.

Roberts returned to work in July or August 2004, and was able to return to all of her job duties. Unfortunately, in November 2005, Robert fell down a flight of stairs at work and required another surgery, which occurred in April 2006. Again, Robert was unable to do field work or drug screenings and her co-workers assumed those duties. After her surgery, Robert took FMLA leave which lasted until July 5, 2006, at which point, Robert still was unable to return to work, although she also had exhausted her sick and vacation leave. Although the evidence is unclear as to the extent of the information provided by Roberts to the county, there was no documentary evidence that Robert would be released to work in the near future; there was, however, testimony from Robert that she could not perform field work unaccompanied, and that she would be unable to walk without assistance for some time to come. On July 31, the county commissioners decided to terminate Robert’s employment, because she was unable to return to work after her leave ended.
Robert filed a lawsuit which included a claim under the ADA. The lower court granted summary judgment on the county’s behalf on that claim, and Robert appealed. The Tenth Circuit upheld the dismissal, finding that Robert was unable to set forth a prima facie case of discrimination under the ADA because she could not show that she was qualified to perform the essential functions of her job with or without accommodation. It first addressed the fact that Robert could not perform the essential functions that were included in her job description without accommodation, because of her impairment. The Court pointed out that the county’s willingness to excuse Robert’s inability to perform site visits during a fairly lengthy – but ostensibly temporary – period of time in 2004 was not evidence that those duties were nonessential. According to the Tenth Circuit, to give weight to that argument would “perversely punish employers for going beyond the minimum standards of the ADA.”

The Court next addressed the fact that Robert would have been qualified to return to work had she been able to perform her job duties with a reasonable accommodation. However, the only potential accommodation that would have allowed her to do that in July 2006 was a reprieve from the essential functions of the job. The Court pointed out that while a brief leave of absence for medical treatment or recovery can be a reasonable accommodation, there are two limits on the “bounds of reasonableness” for that leave. First, the employee must provide an estimated date on which he or she can resume those duties. Without that, an employer is unable to determine the reasonableness of the request. Second, the leave request must assure that the essential functions can be undertaken in the “near future.” Although the Court did not specify how “near” that future must be, it cited a case in which a six-month leave request was too long to be a reasonable accommodation. The Court then held that Robert’s needed accommodation exceeded both criteria for reasonableness, because Robert failed to provide any definite date on which she could return to field work, which would require her to be fully mobile.

One of the critical issues here is that the case turned on the “essential functions” of Robert’s position, and her failure to provide evidence that she could undertake those functions within a reasonable time frame. Importantly, the Court gave primary consideration to the employer’s definition of the “essential functions,” pointing to the written job description in which those functions were listed. The importance of written job descriptions in this scenario cannot be overstated. Employers should assure that such descriptions should be reviewed regularly to assure that they are accurate, objective, and thorough, in order to allow their use in cases such as this one.
 

The Americans with Disabilities Act (ADA) prohibits employers from requiring a “medical examination” and from making inquiries about the nature or severity of an employee’s possible disability, unless such exam or inquiry is shown to be “job-related and consistent with business necessity.” Most employers understand this issue as it applies both to medical examinations of current employees and to post-offer pre-employment physicals. Many of those same employers, however, may not have considered the ADA ramifications of asking an obviously distressed employee from seeking mental health counseling. That particular issue now is in the spotlight: the 6th U.S. Circuit Court of Appeals recently held that an employer’s directive to an employee to see a mental health counselor as a condition to keeping her employment constituted a medical examination under the ADA. Kroll v. White Lake Ambulance Authority, 6th Cir., No. 10-2348, August 22, 2012.

Emily Kroll began her employment with White Lake Ambulance Authority (WLAA) as an EMT in September 2003. Kroll was considered to be a good employee until becoming romantically involved with a co-worker, after which her supervisor and office manager received reports from other WLAA employees about Kroll’s “well being.” Subsequently, the office manager told Kroll that she thought Kroll could benefit from talking to a mental health care provider and Kroll agreed to do so. A few days later, however, the then-director of WLAA met with Kroll and Kroll’s father to discuss an incident between Kroll and a co-worker in which Kroll was alleged to have been “screaming” on the phone with a male acquaintance while she was driving an ambulance in “emergency status” (with lights and sirens) containing a patient. At that point, the director told Kroll that she must attend mental health counseling in order to continue her employment with WLAA. Kroll said she would not attend counseling, left the meeting, and never returned to work at WLAA.
Kroll ultimately filed a lawsuit alleging violations of the ADA, retaliation, and Title VII. The lower court granted WLAA’s motion for summary judgment on all counts, concluding that because mental health counseling does not constitute a “medical examination” under the ADA, WLAA’s requirement of mental health counseling as a condition of continued employment did not constitute a violation of the ADA.

The issue addressed on appeal to the Sixth Circuit was whether the counseling that Kroll was instructed to attend constitutes a “medical examination” under the ADA. Under that statute, employees can be instructed to undergo medical examinations only in certain limited circumstances, confined to “job-relatedness” and “business necessity.” Unless an employer can show that a request for medical examination is supported by such criteria, the request could be viewed as a violation of the ADA. The reason for that, simply put, is that employers are not allowed to ask about an employee’s possible disability, and then use that information to make arbitrary decisions related to the continuation of the individual’s employment, based on that information.
Here, the Sixth Circuit did not address the issue of job-relatedness/business necessity, because that issue is reached only if there has been a request for a “medical examination.” Instead the Court, in an extremely detailed review of the available guidance and case law, determined that, under the criteria set forth by the EEOC for analyzing a test or procedure, a psychological test designed to reveal mental illness or to diagnose mental health issues is a medical examination under the ADA because, in the Court’s words, the “uncovering of mental-health defects at an employer’s direction is the precise harm that [the ADA] is designed to prevent . . . .” Although the Court reversed the district court’s summary judgment in favor of WLAA, it also remanded the case to that court for a determination of whether WLAA’s request for medical examination of Kroll was job-related or was based upon a business necessity.

There are three points of which employers should be aware. First, under this analysis, the fact that an employer’s intentions are “disability neutral” and do not necessarily align with the basic purpose of the test being administered does not save the test from falling under the definition of “medical examination” under the ADA. (Here, WLAA said that whether or not the mental health counseling had revealed a psychological impairment, the purpose was simply to assist Kroll in being able to do her job effectively.) Second, and importantly, all individuals, whether disabled or not, may bring a lawsuit in aid of enforcing the ADA on this issue. Third, and finally, an employer that decides to require a mental or psychological review of an employee’s health or mental status should assure that there is a business related reason for that request, and that such reason is fully and objectively documented.
 

The FMLA permits eligible employees to take up to 12 workweeks of leave during a 12-month period if a “serious health condition . . . makes the employee unable to perform the functions of [his or her] position.” Employers are prohibited from interfering with qualified employees’ benefits or leave under the FMLA. However, the 3d U.S. Circuit Court of Appeals recently held that the FMLA does not shield an employee from discharge merely because an alleged misconduct occurred during an FMLA leave, nor does it prohibit termination of an employee who abuses the terms of an FMLA leave. Warwas v. City of Plainfield, 3d Circuit, No. 11-1736, July 25, 2012.

Jadwiga Warwas, a licensed physician, was hired in 2003 by the City of Plainfield, New Jersey, as the City’s Health Officer. In 2006, Warwas requested sick leave under the FMLA for several health issues. In order to determine Warwas’s eligibility for leave, Plainfield required Warwas’s treating doctor to complete a medical provider certification form. The doctor completed the form, indicating that Warwas “was restricted to home and could not work/attend school. Based on that information, Plainfield granted the leave request.

In spite of the treating physician’s assertion that Warwas was unable to work, Warwas continued to work at home on a part-time basis for the City of Paterson, New Jersey. When Plainfield learned about that work, it terminated Warwas’s employment on September 30, 2006. Warwas appealed that termination to the Merit Systems Board, which ultimately reinstated her employment. However, during the month of April 2008, Warwas was expected to return to work, and was told that further absences would result in her termination. When she failed to return, her employment was again terminated.

Warwas brought an action against Plainfield for interference with FMLA leave. At the close of discovery, Plainfield’s motion for summary judgment was granted, and Warwas appealed. The Third Circuit upheld the district court’s decision after finding that Plainfield terminated Warwas for reasons “entirely unrelated to the exercise of her rights under the FMLA.” Plainfield believed that Warwas had failed to use her FMLA leave for the intended purpose when, in spite of her doctor’s assertion that she was unable to work, Warwas continued to work for Paterson while on leave. According to the Third Circuit, “Warwas is not entitled to a greater degree of protection for violating Plainfield’s Municipal Code merely because she was on FMLA leave when caught and terminated.” The Court found that Warwas was terminated not for her use of FMLA leave, but for the perceived misuse of the leave and her subsequent failure to return to work.

Because this opinion is not precedential, the Court did not provide extensive factual or procedural detail which may have more fully explained the more than five-year lapse of time between the initial termination action and the 2012 Third Circuit decision. However, the basic rationale is clear: the FMLA does not prohibit an employer from firing an employee who abuses FMLA leave, or who violates an employer’s policy while on that leave, even if the employee is eligible and qualified for the leave. An employer can defeat an FMLA interference claim by providing evidence of an honest belief that either of those circumstances is present.
 

Section 8(a)(1) of the National Labor Relations Act (NLRA) makes it illegal for an employer to interfere with or restrain employees from exercising the rights accorded to them under that Act. In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the U.S. Supreme Court held that the NLRA “guarantees an employee’s right to the presence of a union representative at an investigatory interview in which the risk of discipline reasonably inheres.” The protections that resulted from that holding typically are referred to as “Weingarten rights.” On July 25, 2012, the National Labor Relations Board (NLRB) upheld an Administrative Law Judge’s decision that an employer violated an employee’s Weingarten rights when managers ignored the employee’s request to have a union representative present when a meeting — originally scheduled to impose a verbal warning for prior actions — became a discussion of the employee’s general behavior and interaction with his supervisor. That issue was one of many addressed by the NLRB in an appeal in which the remaining issues were dismissed or found not to have been a violation of the NLRA. General Die Casters, Inc., 358 N.L.R.B. No. 84 (7/25/12).

Jerome Ivery, an employee of General Die Casters (GDC), is a member of the International Brotherhood of Teamsters Local 24, and was one of the union’s earliest supporters. On October 28, 2010, the union filed a charge against GDC, which it then amended on a number of occasions to include various actions by GDC which, it alleged, were in violation of the NLRA. One of the amendments referred to a meeting between Ivery and two senior managers that took place on November 1, 2010.

At that meeting, Ivery was presented with a disciplinary notice related to a number of misstatements on his timecards, for which he was receiving a verbal warning. According to the NLRB’s Acting General Counsel, after that discipline was discussed, the managers began an “investigatory interview” of other issues related to Ivery’s relationship with his supervisor. Ivery was asked a number of questions about recent complaints to his supervisor (“. . . why are you always questioning what you’re doing at that given time as if we are doing it to single you out?”). At that point, Ivery asked whether he needed “to get somebody else in here,” and was told that it would not be necessary. As the discussion continued, GDC’s plant manager made a number of references to Ivery’s disciplinary “trouble in the past,” prompting Ivery to again ask whether he needed “somebody” to attend the meeting. That second request was simply disregarded, and the session ended without further discipline being imposed against Ivery.

In its review of the ALJ’s decision, the NLRB first addressed the issue of whether Ivery’s question regarding whether he “needed to get somebody else n here” was sufficient to act as a request for union representation, and determined that it was. It then addressed whether Ivery had the requisite “reasonable belief” that the discussion could lead to discipline.

In past cases, the NLRB has found a right to Weingarten representation based on a reasonable belief of possible discipline when an employer has interviewed an employee with a history of work performance issues and conflicts with supervisors. In this case, the NLRB decided that because Ivery had “some history of work performance issues” and had previous conflicts with his supervisor, a denial of union representation violated Section 8 of the NLRA.

In its detailed opinion, the NLRB provided two clues to employers who would prefer to avoid liability on this issue. First, the Board specifically pointed out that the managers “never indicated to Ivery that no discipline was being considered.” This lack led directly to the Board’s determination that the meeting was, in fact, investigatory in nature, and that Ivery’s fear of impending additional discipline was reasonable. Second, in its review of a case offered by GDC to support the company’s position, the NLRB pointed out that the proffered case could be differentiated because in that situation, “no questions were asked of anyone,” and that, therefore, the meeting in that case could not have been perceived as investigatory. While these two issues, by themselves, may not create a successful defense by an employer against an NLRB charge, they are tips that may assist in avoiding liability under circumstances in which a disciplinary meeting branches out to include discussion of other performance-related issues.

Another point of interest is that the penalty for the violation found in this matter is a requirement to post, for 60 consecutive days, a notice that includes language informing employees of their unionization rights and of an employer’s obligations under the NLRA. The required Notice, written by the NLRB and attached to the opinion in this matter, follows the form and function of a rule that was proposed by the NLRB in 2010, and which would have required most U.S private-sector employers — including most of the 6 million small business in the U.S. — to post a written notice of employee rights regarding unionization. The regulation was proposed in 2010 and was set to become effective in November of 2011. The effective date was postponed to January 31, 2012, and then further postponed until April 30, 2012. At that point, the DC Circuit Court of Appeals enjoined the NLRB’s rule requiring the notice posting, which cannot take effect until the legal issues are resolved. There is no new deadline for the posting requirement at this time. However, based on the NLRB’s decision in this matter, GDC must post that notice. Employers should recognize that the rationale in this decision is a legitimate vehicle for the NLRB to impose a requirement that, at this point, has not been universally imposed upon employers through legislation.