Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Is the EEOC off the rails with this new “wellness” lawsuit? Don’t think so.

Posted in Americans with Disabilities Act

Last week, the Equal Employment Opportunity Commission filed suit against Wisconsin-based Orion Energy Systems, Inc., over its wellness program and its treatment of ex-employee Wendy Schobert, who was not a fan of the program. The lawsuit contends that the program’s health risk assessment is an unlawful “medical examination” and that the company retaliated against Ms. Schobert for failing to have a positive attitude about it. Both the medical examination and the retaliation, says the EEOC, violate the Americans with Disabilities Act.

thumbs-down1 Commodius

“Your wellness program has been weighed in the balance and found wanting.”

If you’ve been keeping an eye on this wellness/ADA issue — as I have here, here, here, and here — you know that the EEOC has not been as forthcoming with guidance as we’d ideally like, although in May it promised that we’d be getting something soon. That having been said, if the EEOC’s allegations in this lawsuit are correct,* then Orion may have a problem.

*All we have now is the lawsuit and the EEOC’s press release. We have not heard Orion’s side of the story.

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Transportation employers, can you survive the federal audit “tag team”?

Posted in Retaliation, Safety, Transportation Industry

David Smith of Constangy’s OSHA practice group is co-author of this post.

The federal Occupational Safety and Health Administration and the Federal Motor Carrier Safety Administration are tag-teaming transportation employers. They’ve signed a Memorandum of Understanding in which they agree to share information about allegations of safety, coercion, and retaliation.

Tag Team-ROH_Wrestling's_Greatest_Tag_Team

The FMCSA auditor is on the left.

And last week, OSHA ordered a Michigan asphalt company to pay almost $1 million to a foreman and two drivers who claimed that they were fired in violation of the Surface Transportation Assistance Act for engaging in protected activity related to driver hours of service.

It’s a mistake for trucking employers to breathe a sigh of relief when the FMSCA auditor drives away – because the OSHA inspector may be right behind. Here are some areas you should look at before any auditor or inspector arrives:

*Forklift Compliance. Are forklifts in good working order, with legible data plates and functioning seatbelts that are consistently used? Are attachments approved by the manufacturer? Do you regularly conduct required pre-shift inspections? Have all operators been trained and evaluated, and then re-evaluated every three years?

*Loading Docks. Do you regularly review procedures and check equipment used to prevent trailers from mistakenly pulling away while being loaded? And, if any loading dock is 4 feet high or higher, to prevent forklifts or employees from falling off the dock?

*Terminal shop and fuel islands. These are considered “low-hanging fruit” for OSHA inspectors, who frequently find unguarded or unanchored grinders and drills, use of compressed air without safety nozzles, lack of eyewash facilities, trailer top repair work without fall protection, and unlabeled containers of oil, antifreeze, or even window washer fluid.

Fruit tree

Watch out for that low-hanging fruit!

*Safety shoes. OSHA inspectors have even been known to cite employers for not requiring dock employees to wear safety shoes with protective toes.

*FMSCA compliance. The OSHA inspector may tell you in the closing conference that employees alleged FMCSA violations, such as exceeding hours of service, falsification of logs, or improper maintenance of tractors and trailers. The OSHA inspector may also notice and refer visible FMCSA compliance issues, such as improperly loaded trailers, missing or erroneous hazardous material placards, or hazardous cargo that is improperly packaged and leaking, or missing the required labels.

*Whistleblowers. Of course, because the primary focus of the MOU is whistleblower protection, either an FMCSA auditor or an OSHA compliance officer would quickly refer any claim of safety-related retaliation. Those complaints would be referred to OSHA’s Whistleblower Protection Programs division for investigation. All trucking employers should already have in place an effective whistleblower protection policy, with training for managers, supervisors, and employees.

With a good safety and whistleblower policy in place, you should be ready for the FMCSA-OSHA “tag team.”

Sexy ADA issue: Bad breakup may not justify employer-mandated medical exam

Posted in Americans with Disabilities Act, Discrimination, Employment Law Blog Carnival, Off-Duty Conduct

Anna Karenina. Those eyes should have been a tip-off.

Rarely does one get a case that involves a cutting-edge Americans with Disabilities Act issue combined with wild, crazy, passionate, irrationally exuberant, tempestuous, adulterous romance. Well, folks, today is your lucky day.

Should we start with the sex, or with the ADA issue? Oh, heck – let’s start with the sex.

Emily Kroll, an Emergency Medical Technician working for White Lake Ambulance Authority in Michigan, fell head over heels in love with her co-worker, Joshua Easton, who was married. Ms. Kroll and Mr. Easton had a tumultuous relationship, which included “frequent arguments,” and text messages and emails from Ms. Kroll, and a lot of screaming and crying on Ms. Kroll’s part. Not surprisingly (just reading between the lines here), Mr. Easton apparently elected to stay with his wife. Ms. Kroll didn’t take that too well — in fact, she took it so poorly that her co-workers began to worry about her emotional stability.

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BREAKING: OFCCP issues directive on gender-identity discrimination

Posted in Affirmative Action, Discrimination

The Office of Federal Contract Compliance Programs has issued a new directive on gender-identity discrimination, consistent with President Obama’s recent amendment to Executive Order 11246. In essence, the directive says that discrimination based on gender identity is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, a position that has already been adopted by the Equal Employment Opportunity Commission and many federal courts.

Teleworker, or teleslacker? Here’s how employers can tell the difference.

Posted in Telecommuting, Work-Life Balance

You all know that I love telecommuting, although it works better in some instances than in others.

Before any employer starts a telecommuting program, it should ask itself three questions:

1) Does the job lend itself to a telecommuting arrangement? (You can’t very well assemble Cadillac Escalades from your home office, now can you?)


Too bulky. Where would I put my laptop?

2) Is the employee’s home worksite conducive to work? Does the employee have proper equipment, or does she have a Commodore 64 with dial-up modem, and a rotary phone? (If the latter, are you willing to provide her with a decent set-up as part of the deal?) Is the home environment free of distractions?

Register here for our webinar, “Labor Board Takes Aim at ‘Joint’ Employers,” which will be from 1 to 2:30 p.m. Eastern Thursday, August 21. If the National Labor Relations Board redefines the test for determining joint employer status, it will affect employers in virtually every industry and segment of the economy. Presenters will be Dan BarkerTim DavisDan Murphy, and Kim Seten. Don’t miss it!

and the big one, which is really the one I want to talk about today . . .

3) Is this particular employee fit to telecommute? Can she work independently? Is the quality of his work satisfactory? Is she reliable and responsible? Is he motivated, even when the supervisor isn’t nearby? Has she demonstrated personal integrity?

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The “Dirty Dozen”: Top 12 employer harassment mistakes

Posted in Harassment

Today is the last day to vote for the 2014 ABA Blawg 100. If you have already voted, thank you! If you have not voted and are so inclined, please go here before 5 p.m. Eastern today and briefly tell them why you think Employment & Labor Insider should be on the “A” list of employment law blogs. We very much appreciate your support!

According to statistics collected by the Equal Employment Opportunity Commission, harassment charges have stayed relatively stable over the past three years, and the number of “cause” determinations has actually declined. (Yay!) Yet employers should still be concerned because the monetary relief has increased dramatically – from $82.1 million in fiscal year 2012 to $97.3 in fiscal year 2013. Dollars going up while cause determinations go down? (Boo.)

In other words, it isn’t Miller time for employers just yet.

In my continuing quest to make sure that none of our readers ever get sued — or, if that fails, never lose a lawsuit — here are my “Dirty Dozen” employer harassment mistakes. Are you guilty of any of these? If so, cease and desist!

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Public employers, you can’t drug test as if you were in the private sector

Posted in Drug Testing

Public employers often mistakenly believe that they have the same drug testing rights as employers in the private sector. As a recent decision from a federal court in Florida shows, it ain’t necessarily so.

Karen Voss was offered a newly created position of Solid Waste Coordinator with the City of Key West. The job entailed marketing and planning related to the city’s recycling programs, and “overseeing other tasks within the City’s Solid Waste Utility.”

The offer, like most job offers, was contingent on her taking a drug test. Ms. Voss consented in writing to be tested, but instead of going to the collection site for the test, she went to the city attorney’s office and complained that the testing violated her rights. Because she refused to be tested, the city hired another candidate.


When it came to being drug tested, Ms. Voss just said no.

Ms. Voss sued the city with the help of the American Civil Liberties Union, contending that the drug test requirement violated her rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. The court granted her motion for summary judgment as to liability.*

*With respect to damages, Ms. Voss has filed a motion seeking a declaration that the City’s drug testing policy is unconstitutional, an injunction, and about $255,000. A hearing is scheduled for September 25. 

The Fourth Amendment prohibits unreasonable searches and seizures, and the Fourteenth Amendment makes these and other restrictions applicable to the states. Urinalysis drug tests are generally considered to be “searches and seizures” because they “intrude[] upon expectations of privacy that society has long recognized as reasonable.”

Key West.Captain_Tonys_In_Key_West

Why does anyone need drugs when they live in Margaritaville?

If the “search” is not based on “individualized suspicion of wrongdoing,” the government has to show that it had a “special need” or that the testing served an “important governmental interest.”

Because this was a standard pre-employment drug test, there was, of course, no individualized suspicion. But the City argued that the need for a drug-free workplace was a “special need,” that the “search” was not unreasonable because it applied only to applicants, and that the job was safety-sensitive, which justified the drug test. The court rejected all of these arguments.

Regarding the need for a drug-free workplace, the court found that there was no evidence showing that drug abuse was a problem with city employees or with applicants for city jobs. The court found that the job was not safety-sensitive because it did not require exposure to dangerous machinery and for the most part was a “desk job.” Perhaps the most damaging fact for the city’s case was that it did not require employees in this position or in related positions to be tested randomly for drug use.


Sad, but true: this is probably not safety-sensitive work.

Finally, the court rejected the city’s argument that applicants could “reasonably” be tested even if employees could not.

If Key West had been a private sector employer, its drug testing program probably would have been fine, but public employers do not have the freedom of private sector employers. Public employers should carefully evaluate their drug-testing policies and the manner in which they apply those policies to make sure that the testing is not prohibited by the Fourth Amendment.

You can’t fix stupid: Employment law edition

Posted in Discrimination, Off-Duty Conduct, Retaliation

You can’t fix stupid.

Homo sapiens is fired for teaching about homophones (and his sister is a known thespian rumored to have dramaturgical aspirations). A teacher at a private language school in Utah says that he was fired by the director for posting about homophones on an educational blog, which the director allegedly believed was promoting a gay agenda.

Homophones, as we all know, are words that sound the same but are spelled differently and mean different things. Like, “bear” and “bare,” or “red” and “read” (past tense). There’s nothing sexual about homophones. Well, except for “sex” and “sects.” Maybe the director has a point, after all.

This is the last week to vote for the American Bar Association’s 8th Annual Blawg 100. If you enjoy Employment & Labor Insider and are so inclined, please go to this link and briefly explain why we should be on the “A” list of legal blogs. The deadline for nominations is 5 p.m. EDT Friday, August 8. Thank you for your support!

This article has a picture of the teacher, manifestly displaying his epidermis.

P.S. - “Homo” is a prefix from Greek meaning “same.” It is also the name for the human genus.

P.P.S. – Read this. I am in awe.

Barney Fife.Don_Knotts_Barney_and_the_bullet_Andy_Griffith_Show

“How come I get only one bullet? Racists!”

“Don’t hate me because I’m white.” A police officer in the town of Moultrie, Georgia, who made Barney Fife look competent, was forced to resign and was sure it was because he was white. The fact that he’d left his squad car with the engine running and his window down, backed the car into a light pole, left the car while it wasn’t in “park,” ran a red light, didn’t tell the dispatchers where he was, caused a wreck when he used his cell phone while driving, drove 20 miles over the speed limit, wrecked his car and couldn’t remember how he’d done it, accidentally shot himself with his firearm, lost the notebook that contained his incident reports, left his shotgun on the steps of the entrance to the police department, lost a pager and a gas card, lost a $100 counterfeit bill that was evidence, failed to put documents into evidence, “failed to immediately confiscate a firearm with an altered serial number that somebody was attempting to pawn,” failed to use a voice recorder in an interview, found a knife in the trunk of his car and had no idea how it got there or whether it was evidence, lost a suspect’s cell phone, was late for court, frequently missed training sessions, arrested the wrong person, spoke rudely to a fellow officer in the presence of a witness, and failed to get the police dog he was in charge of recertified as a K-9 dog, had nothing to do with it.

(Summary judgment for police department on race discrimination and retaliation claims, and the Town of Moultrie, Georgia, is sleeping better tonight. However, “Barney’s” claims for unpaid wages related to time he spent caring for the police dog will go to trial.)

Hmmm . . . maybe you’d be happier in another line of work, d’ya think? Suburban Philadelphia honors English teacher Natalie Munroe was doing fine in her career until she decided to start venting on her blog about her students. On Where are we going, and why are we in this handbasket?, Ms. Munroe reportedly used words to describe her charges like “jerk,” “rat-like,” “dunderhead,” “frightfully dim,” and “whiny simpering grade-grubber with an unrealistically high perception of own ability level.”*

*Impressive verbiage. You can tell she’s an honors English teacher.

She also said “that parents ‘were breeding a disgusting brood of insolent, unappreciative, selfish brats.’”


DISCLAIMER: This is not Natalie Munroe.

The school was not thrilled when word got out through students’ social media postings, which then drew the attention of mainstream media like . . . “The Huffington Post, CBS, ABC, NBC, CNN, Fox News, Reuters, the Associated Press, and the Philadelphia Inquirer.” Ms. Munroe was initially suspended, and when she returned, students were allowed to opt out of her classes, which they did, leaving her classes too small to be viable. Then the school system fired her, and she sued, claiming retaliation for exercising her First Amendment rights.

A federal judge in Philadelphia ruled last week that her blog was primarily personal, and that her statements about the kids and parents were not protected because the blog contained “gratuitously demeaning and insulting language inextricably intertwined with her occasional discussions of public issues.” The Honorable Cynthia Rufe apparently has a way with words, too. English major?

(Summary judgment for the school system.)

Yes, sexual harassment plaintiff, you can shoot yourself in the foot. Here’s how.

Posted in Harassment

Even an air-tight case of sexual harassment can be sabotaged if (1) the employer has a policy banning it and an effective mechanism for handling complaints, and (2) the victim refuses to cooperate in the investigation.

Rhonda Simpson was hired to work at a Big Lots store somewhere in Alabama, after a manager saw her at a fast food restaurant and thought she looked like Farrah Fawcett. She went to work at Big Lots, starting as a cashier, and working her way up to Assistant Manager. For most of the time she was there, she did not report to the manager who recruited her initially, but that didn’t stop him (allegedly) from being extremely crude and disgusting on a regular basis. (You can read it all in the court’s decision, but make sure there are no children around when you do.)



Ms. Simpson reportedly looked a lot like this.


Big Lots had a policy prohibiting sexual harassment and a hotline number for employees to use to make complaints. Ms. Simpson called the hotline in 2006 and made an anonymous tip about the sleazy manager. The company sent a representative to investigate, but Ms. Simpson was not at work when he came, and because her tip was anonymous, nobody knew to contact her. Meanwhile, Ms. Simpson knew that the representative was investigating her complaint and made no effort to get in touch with him.

At the end of the investigation, even without Ms. Simpson’s help, the manager was reprimanded.

Ms. Simpson also claimed that she had complained to her boss about the manager, and in response the manager brought a district manager in to conduct another investigation. However, when the district manager was on site, Ms. Simpson was on medical leave and did not contact him. To make matters worse, Ms. Simpson advised a female co-worker, who had a notebook documenting the manager’s alleged harassment, not to share her notebook with the district manager.

Ms. Simpson was later injured on the job, and was eventually administratively terminated for failing to return from a leave of absence. (This did not appear to have any connection with her sexual harassment complaints.)

According to the U.S. Supreme Court, an employer will not be liable for harassment by a supervisor under Title VII if the harassment does not result in a “tangible job detriment,” and (1) the employer has effective measures in place to prevent harassment and correct it if it occurs, and (2) the employee unreasonably fails to make use of the employer’s remedial measures.



Big win for Big Lots.


The federal court in Alabama granted summary judgment to Big Lots, finding that Big Lots was entitled to this Faragher/Ellerth defense. First, the court found that the manager’s conduct could very well be considered sexually harassing. However, the court found that Big Lots had both a policy prohibiting workplace harassment and an effective mechanism for making complaints. The court also found that the company had conducted “reasonable” follow-up on Ms. Simpson’s complaints.

Finally, the court found that Ms. Simpson had failed to avail herself of the employer’s remedial measures by failing to present herself for interviews during the two investigations and instructing her co-worker not to provide her notes to the investigator.

What could have been a big loss for Big Lots ended up being a big win, thanks to the store’s policy and response, coupled with an uncooperative victim.

Sex stereotyping, sexual orientation discrimination, and federal law – crazy-mixed-up right now

Posted in Discrimination, ENDA, Harassment

The Employment Non-Discrimination Act is dead again. Is there any federal law on same-sex harassment or discrimination? If so, what is it? Here are some scenarios that may be helpful in picking through this crazy extremely complex and rapidly transitioning area of the law. (Answers are provided after Scenario 6, below.)

The American Bar Association is still accepting nominations for its 8th Annual Blawg 100. If you enjoy Employment & Labor Insider and are so inclined, please go to this link and briefly explain why we should be on the “A” list of legal blogs. The deadline for nominations is 5 p.m. EDT Friday, August 8. Thank you for your support!

Scenario 1. Joe has a huge crush on John. Joe makes lewd and unwelcome comments to John, and tries to corner him to make sexual advances to him. John has made it clear to Joe that he is not interested, but Joe doesn’t listen.

Under federal law, is there a problem?
pollcode.com free polls 

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