Employment and Labor Insider - Legalese Is Not Spoken Here

I was off enjoying the Florida sunshine last weekend while learning the latest techniques in pettifoggery and obfuscation (kidding!), but I hope I'll be making up for it today with a good case answering the musical question: "What does an employer do when it finds out that its employee on 'medical leave' is actually doing stuff?" You know, like working another job, or hanging out at the gun show, or raking leaves, or riding the Roundup at the amusement park . . . without even throwing up?

This question has bedeviled more than one employer, but the U.S. Court of Appeals for the Sixth Circuit, which hears appeals from federal district courts in Kentucky, Michigan, Ohio, and Tennessee, has given us a good answer. But first, let's talk a bit about the employer's dilemma.

You have a policy saying that an employee can't work while on medical leave. Your policy probably doesn't cover recreational activities, but everybody knows you don't go to Six Flags or play golf or till the soil for your vegetable garden when you're sick or injured.

So you have an employee who goes out on medical leave, and somebody tells you that they saw Joe doing one of these things. Maybe you even heard that Joe had another job.

Can you fire him for fraudulent medical leave?

Not necessarily. First, it's a good idea to make sure the rumor is true, or at least "more likely than not" to be true. But even if you were the one who saw Joe doing cartwheels in his front yard during his leave for degenerative disc disease, you may not have caught him as "red-handed" as you think. (Well, maybe if he was doing cartwheels . . .) It could be that the employee's "recreational" activity, or even alternate employment, is within his medical restrictions while your job is not. In fact, most doctors would recommend that employees engage in some activity while on medical leaves. It can speed recovery and help to ward off depression by providing sunshine, fresh air, exercise, and even a little bit of money to help pay those doctor bills that you, as the employer, are not already paying.

I've seen this situation a time or two. Several years ago a client's full-time employee had to take leave under the Family and Medical Leave Act for stress. While he was on leave, somebody reliable saw him working in the men's department at a local shopping center. The company was ready to fire him for fraudulent FMLA leave, but I recommended caution because of the possibility that the job at the department store was within his medical restrictions while our client's job was not. The company investigated, and sure enough -- it turned out that the store job was part time, much less "stressful" than the employee's regular job, and completely within his restrictions.

So we ended up letting him continue to work at the store while on leave from the client.

On the other hand, we've caught (on video, which is always fun) a company nurse who supposedly couldn't work at all doing exactly the same work full time for a local doctor's office while out on workers' compensation leave from our client. We fired her and terminated her workers' comp. She threatened to sue, but gave up pretty quickly.

Other fishy real-life cases have included

*an employee out with a bad back who was seen at church wearing seven-inch stiletto heels and having no trouble getting around in them, even on the church's gravel parking lot.

*an employee out for depression who spent an entire day manning a table at a gun show.

*an employee with a bad back who spent an entire day stocking and manning a booth at a fair, and then loading boxes into her van at the end of the day.

Our recommendation in all of these cases is to take a case-by-case approach, first making sure you have reliable information, and then considering the nature of the employee's illness or injury, the employee's restrictions, and the activity he or she was "caught" doing.

But how much investigation is enough? That's the question that's been answered by the Sixth Circuit. 

The plaintiff (we'll call him "Betelgeuse") absolutely, positively won't work, babe - he just won't - but then some co-workers saw him at an Oktoberfest, walking around and drinking bier and flirting with frauleins. (I made the "flirting" part up, but the rest is true.) The employer did an investigation, interviewing the employees who had seen Betelgeuse at the fest. All but one said he seemed to be fine. One said that he seemed to be in pain. The employer also reviewed his medical and personnel records, and finally decided to fire him for taking fraudulent FMLA leave. Betelgeuse sued, alleging "interference" (not letting him have FMLA leave* he was entitled to) and retaliation (punishment for taking FMLA leave).

*Interference can also include discouraging an employee from taking FMLA leave.

The district court granted the employer's motion for summary judgment, and two judges on a three-judge panel at the Sixth Circuit affirmed. Although Betelgeuse claimed that the employer should have done a more thorough investigation, including talking to the witness who thought the employee seemed to be in pain and talking to BG's own physician, the majority said that an employer didn't have to be correct and didn't even have to conduct an "optimal" investigation. As long as it appeared that the employer honestly and reasonably believed that the employee had misrepresented his medical condition, it was ok for the employer to take action without being liable for FMLA violations.

It's obviously great news for employers that they (1) don't have to be right beyond a reasonable doubt, and (2) don't have to do an airtight investigation as long as they've done some reasonable investigation.

And, now that you're feeling all warm and fuzzy, a disclaimer - notice I said that two out of three judges reached this decision. That leaves one, who dissented. According to the dissenting judge, the employer should have followed up with the witness and the employee's doctor and its failure to do so created a "genuine issue of material fact" (requiring a jury trial) as to whether the employer's belief was reasonable and in good faith. Given the dissent, it's possible that the plaintiff will ask to have the appeal reheard by all of the judges on the Sixth Circuit, and the full Sixth Circuit may reach a different decision.

And in other news . . .

Yesterday I was honored to be part of a web radio interview hosted by Stephanie R. Thomas of The Proactive Employer with Lilly Ledbetter (yes, that Lilly Ledbetter!) on the subject of equal pay. The interview is posted on Stephanie's website, and you can listen to it at your convenience. Next Thursday at 3 p.m. EDT, Stephanie will be interviewing Patricia Shiu of the Office of Federal Contract Compliance Programs. Good stuff!

Also, I must send you to a great post by Jon Hyman talking about why we don't need new legislation to address pregnancy discrimination. Jon also provides a link to another excellent post by Suzanne Lucas ("the Evill HR Lady") on "Why you should stop attending diversity training." (Please note that Suzanne is not anti-diversity -- just "anti" most of the training that goes on these days. I happen to agree with her, but whether you do or not, I think you'll find her post thought provoking and worth your time.)

To all my fellow moms out there, have a wonderful Mother's Day weekend!

(Photos from Wikimedia Commons, public domain.)

Dear Jackie,

How ya doin'? I'm not too bad . . . just keepin' my nose to the grindstone at work and enjoyin' the spring weather, and not a whole lot else . . . same old, same old.

Listen, hon. I know it's been a while since we've been in touch, but when I saw your new "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq." -- no offense, but that is not a catchy title!! -- I just had to sit right down and write yourself a letter.

Can we talk?

Don't get me wrong, hon -- I'm cool with not usually considering arrest records in making employment decisions. I get all that adverse impact stuff, and I'm opposed to it, just like you. And I agree with you that we shouldn't be winking at the white guy's crime while getting all hot and bothered over the black or Hispanic guy who does the same thing.

But, dang, girl! I'm reading this thing, nodding my head, saying, "Uh-huh, uh-huh, yep, good point, amen, uh-huh," and then - BAM!

I hate to say it, but some of your numbers seem a little . . . dishonest. Like, OK. You say that "African Americans and Hispanics are arrested in numbers disproportionate to their population." I get that. But then you say (and I'm skipping a little -- I'm trying to keep this letter from turning into War and Peace) "African Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites."

Huh? Why talk only about drug offenses? What about murder, armed robbery, grand theft auto, obstruction of justice, using presidential campaign contributions to pay off your mistress so she won't squeal to the media about being pregnant and sink your campaign (allegedly, allegedly!), and breaking into the Democratic National Committee headquarters to commit a third-rate burglary?

And why compare arrests (etc.) for drug offenses with the rate of drug use? Sweetie, I've been around the block a few times. Trust me, there are a lot of drug offenses besides "use." Like dealing. Or running a drug house. Or being in a high-speed chase with the cops because you have a stash in your car. Or stealing to buy your drugs. (How do I know all this? I was young once myself. Kidding!) They even kill each other over drug deals gone bad. And you didn't tell us whether the African Americans and Hispanics who were convicted were just a bunch of lovable stoner dudes who were too herbed out to keep from getting caught, or whether they were also doing some of this serious stuff. Don't we need to know that to be able to compare and to see whether discrimination is going on?

Honey, a girl's reputation is her most important asset. Don't lose it.

OK. Move on dot org. I've gotta ask ya -- have you ever had to hire somebody? 'Cause I gotta say, this thing sure doesn't read like it.

All this nice talk about how an employer should take into account how serious the crime is, and how it's relevant to the particular job applied for, and when the perp stops being at risk for being a recidivist, individualized assessments, reviewing sociological studies, validation under the Uniform Guidelines on Employee Selection Procedures, "less discriminatory 'alternative employment practices'" even if the criminal information is "job related and consistent with business necessity" . . . and on and on and on, blah, blah, blah, blah, blah, zzzzzzzzz --

Sweetie, I know your heart's in the right place, but an employer can't go through all that malarkey with everybody who applies for a job! You know what Ann Landers used to say, may she rest in peace: Wake up and smell the coffee, Buster!  Employers have to use the information they can get to predict who they think will do a good job. They do the best they can. Sometimes criminal information can help. It seems like you're trying to make it so hard for them that they won't use it any more. You wouldn't do that, would you?  :-(

Then you start talking about other laws, and I was with you when you were talking about how you're still allowed to comply with a requirement of federal law. So it's ok to reject somebody if they pled guilty to wearing a shoe with a bomb in it on an airplane and can't get a federal security clearance that they need for their job at the nuclear power plant. Glad to hear it.

But you lost me again when you started talking about state and local laws, and how you can't use them as a defense. I get that Title VII would "preempt" state or local laws that allow employment discrimination or even require it, like that old law in Virginia that wouldn't let people of different races get married except that it wasn't an employment law. But do you really think Title VII preempts state laws that simply require criminal background checks for certain jobs and disqualify everyone -- of any race -- who's been convicted of certain crimes?

Sweetie, I feel like you're overreaching here. If you got slapped down by a court, it would break my heart. You know I'm serious.

You're saying that an employer has to disobey its state or local laws on criminal background information unless it can prove that the state or local requirement is "job-related and consistent with business necessity" . . . ?

Don't answer that -- I don't think I want to know.

Time's getting away from me, and I have to run some errands. Eric Meyer has five good "takeaways," and Phil Miles has links.

And, don't tell me, I already know Daniel Schwartz and Jon Hyman and even my own colleague David Phippen think you could have done worse, and I'm sure they are right. But I always thought you held yourself to a higher standard than that, young lady. Do you want to do just the bare minimum, or are you a cut above?

*Whew.* OK, now I feel better. You know I get on your case only because I love ya.  :-)

So, how is everything else at the EEOC? We really should go out for drinks soon. If you're up for it, give me a buzz. (Hahaha -- get it?)

Robin

xxxooo

P.S. Photos from Wikimedia Commons (public domain).

Woody Allen once said, "80 percent of success is showing up." So true, so true!

The U.S. Court of Appeals for the Ninth Circuit* came out recently with a great decision on when "showing up" -- also known as "attendance" -- is an essential function of the job, and when an employer can terminate an employee for poor attendance even if the absences are caused by a "disability" within the meaning of the Americans with Disabilities Act.

*The Ninth Circuit hears appeals from federal district courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands. Its headquarters is in San Francisco.

The plaintiff in the case (let's call her "Miss Ratched") was a nurse in a neonatal intensive care unit at a hospital in Oregon. As you probably know, the NICU is the part of the hospital where they take care of little babies -- and I really do mean little -- usually severely premature, and often having other serious health conditions. (And I'm not talking "FMLA-serious," which includes hangnails, the sniffles, and ennui. I mean the real thing.)

Anyway, Miss Ratched had fibromyalgia and missed work a lot. The hospital -- we'll call it St. Patience for obvious reasons -- tried to accommodate her for years but eventually gave up. They finally told her she would have to move to another department where her attendance wasn't as critical. She said no. In my favorite part of the case, the hospital scheduled a meeting with her to discuss her attendance, and she was absent from the meeting. LOL! Eventually St. Patience fired her for bad attendance.

Pretty brave for an employer in the Ninth Circuit. Maybe our hospital's pseudonym should have been "St. George the Dragonslayer."

Miss Ratched sued St. Patience under the ADA, claiming that she should have been allowed to stay in the NICU and "opt out" of the attendance policy.

And the Ninth Circuit sided with the hospital! Man bites dog!

(OK, sorry, Ninth Circuit. I'm done teasing you now.) The decision actually provides an excellent discussion about when absence from the workplace can be "accommodated" and when it cannot.

Regular attendance is usually considered an "essential function of the job," which means that an employer can usually require it. But it's not an essential function in every case. Some jobs can be performed pretty well at home or on flexible schedules -- for example, writing a blog, and other jobs that entail a lot of computer or "paper" work.

If so, and if telecommuting would help the employee perform the essential functions of the job, then most courts would say that the employer has to consider allowing it as a reasonable accommodation.

But there are a lot of other jobs that really can't be performed at home, duh:

*Where the employee must work "as part of a team."  

*Where the job requires "face time" with clients or co-workers.

*Where the employee must work with items or equipment that are on-site.

The Ninth Circuit said that Miss Ratched's job fell into all three of these categories. The NICU staff had to work as a team. Face time with supervisors, other staff, the babies, and the parents was an important part of the job, too. And, of course, NICUs are full of sophisticated equipment with beepers and flashing lights and such. In addition, the Ninth Circuit found, the nurse's job was not "fungible" -- working as an NICU nurse required training and expertise that was not readily available, even among the nursing population. That meant that it was often hard to find qualified substitutes for Miss Ratched when she called in sick, affecting the quality of the little ones' care. Not to mention the cohesiveness of the "team."

The court also found that St. Patience had gone to extraordinary lengths to work things out with Miss Ratched before it terminated her employment. And, even though the hospital already had a fairly generous time-off policy, the court said, that didn't mean it had to grant even more time off to Miss Ratched.

So, when you have an employee who wants time off or to be able to work from home as a reasonable accommodation, you could do a lot worse than starting with a look at this case. Even if you live in Illinois or New Hampshire or Alabama. Eighty percent of success really is showing up.

(Photos from Wikimedia Commons, public domain.)

Here's a strange little case for ya . . .

A loss prevention manager for a major retail store chain -- we'll call her "Loretta" -- had some performance issues in the past but was only five days away from the satisfactory completion of a performance improvement plan. She and a male loss prevention partner were called to investigate a sexual harassment complaint. During the investigation Loretta and her male partner believed that the victim was "holding back." They agreed that Loretta should interview the victim alone. Apparently in response to some leading questions, the victim told Loretta that her supervisor had raped her, and more than once. The victim said that she did not want her husband to know and did not want to go to the police.

Loretta and her partner reported all of the above to their bosses, and Loretta strongly recommended that the company report the alleged rapes to the police. The company declined to go to the cops because the victim didn't want that, but they immediately suspended and eventually fired the alleged harasser/rapist.

Despite this prompt action, Loretta continued to insist that the company go to the police. The company continued to refuse to do so. Loretta was terminated shortly afterward -- according to the company, Loretta violated company policy by interviewing the victim alone, and by asking the victim leading questions.

Loretta, unsurprisingly, sued for retaliation.

So, who wins?

Continue Reading

If your job makes you want to kill yourself, are you a "direct threat" to your own safety?

In what has to be one of the weirdest ADA cases I've seen, a woman (let's call her "Gladys") was hired as a temp for a tech company in Seattle (let's call it "Initech"). A month later, Initech brought Gladys on as a regular employee. A month after that, Gladys told Initech that she suffered from chronic pain. Initech was like, hey, no problem, we will try to accommodate you.

Um, yeah. That'd be terrific.

Gladys was put on a reduced schedule and was eventually authorized to return to work full-time. Initech assigned her to a shift that ran from 6 a.m. to 3 p.m. Gladys didn't care for those hours. She told a manager that the schedule was stressing her out and depressing her. Then she sent the manager a Facebook message and said that she was spending the whole day at work trying to think of ways to . . . kill herself.

Because Gladys's suicidal ideations were related to her job, Initech (reasonably) determined that she might be a "direct threat" to her own safety if she continued to work there. She claimed in other postings that she had "PTSD*" and felt like her workplace was a "war zone."

*Post-traumatic stress disorder

"Direct Threat"

I don't believe I've ever posted about the "direct threat" defense under the ADA. If an employee's disability causes him to be a "direct threat" to himself or others, it might be lawful for the employer to take appropriate action "against" the employee. For example, the employer might be able to refuse to hire, or to require an employee to take a medical leave, or even to fire an employee.

Or it might not be able to do any of those things. If a reasonable accommodation would eliminate or reduce the direct threat, then the employer would have to try to accommodate.

In determining whether an applicant or employee poses a "direct threat," employers and their medical consultants should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the harm will occur, and the imminence of the risk.

Here endeth the lesson.

So Gladys said on Facebook that her job made her want to kill herself. What's Initech supposed to do with an employee like this?

 You can almost see the wheels turning in Lumbergh's head. "Um, yeah . . . maybe we can turn from 'Dr. Jekyll' into 'Mr. Hyde,' and shake her that way. Yeah, that'd be terrific."

*DRAMATIC REENACTMENT*

"Gladys, mmm, yeah, come in. Take a seat. Can we bring you a cup of coffee? Now, mmm yeah, Glads, we are a little concerned about bringing you back to work, since this job makes you suicidal. But the ADA requires that we engage in an 'interactive process.' So we would like to engage in the 'interactive process' with you. That'd be terrific."

"Sure! What does that mean, and what do I have to do?"

"Well, mmm, yeah, we need for you to engage in the interactive process with us."

"Sure! What does that mean, and what do I have to do?"

"Well, mmm, yeah, we need for you to engage in the interactive process. And if you don't, we'll repossess your red Swingline stapler."

"OK! What does that mean, and what do I have to do?"

"Mmm, well, sorry, but since you didn't cooperate in the interactive process, we're taking your red Swingline and firing you. Thaaanks."

*THE ABOVE MAY NOT HAVE ACTUALLY HAPPENED.*

So, Gladys sues, and at some point, both sides move for summary judgment. The court denied Gladys's motion (no surprise there). But the court denied Initech's motion, as well.

The court said that a jury should decide whether Gladys refused to engage in the "interactive process," which would result in the loss of her protection under the ADA, or whether Initech was to blame. Gladys argued that Initech was deliberately setting her up for termination. On the other hand, the court recognized that Gladys might not be, how you say, fit to work. All that is for the jury to decide.

So, the moral of the story is, passive-aggressive tactics are generally a bad policy and don't help employers. In fairness, Initech might not have known what "the interactive process" was either, and was muddling through it with difficulty but in good faith. The jury will -- yeah, you know. In case you might have forgotten, the ADA "interactive process" is fancy-lawyer-talk for a discussion between employer and employee about reasonable accommodation options. That's really about all there is to it.

A few good links: Eric Meyer of The Employer Handbook has a post about a plaintiff who managed to get a court order allowing discovery of the defendant's Facebook page, which is the reverse of what we usually see. And, if you haven't already been there, please get over to Phil Miles' excellent blog, Lawffice Space, for the March Employment Law Blog Carnival -- with a Saved By the Bell theme! Phil, thank you for letting us participate. Finally, many thanks to HR Examiner, which named Phil and me as two of their Top 25 Online Influencers for 2012!