Employment and Labor Insider - Legalese Is Not Spoken Here

Over the next 7 business days, I'll have a series of short posts addressing common questions that employers have about the law. If there is an "FAQ" that you would like for me to address, please let me know in the comments box.

I may also have more in-depth postings as circumstances warrant.

Employer FAQ No. 5: Is there any difference between light duty and reasonable accommodation?

Most of the time, yes. Light duty is usually given in the context of a workers' compensation injury. It's often "make work" and provided to facilitate recovery, and it's usually offered for a finite period of time. Most importantly, it's completely optional for the employer (although workers' comp carriers don't see it that way).

Reasonable accommodation is required under the Americans with Disabilities Act to allow an individual with a disability to perform the essential functions of the job. It should be "real work with adjustments." Of course, it can also include reassignment to another vacant position involving real work, part-time status, or a medical leave, or a million other things. The obligation to make reasonable accommodation lasts as long as the employee can perform the essential functions of the job with one, and the accommodation made may have to change over time as the employee's condition and needs change.

Light duty can be a form of reasonable accommodation. If an employer offers light duty for workers' compensation injuries, it might have to offer light duty on the same basis to employees with disabilities. For this reason, from an ADA standpoint, employers may want to consider placing a strict time limit on "make-work" light duty (for example, a cutoff after 90 days). However, workers' compensation carriers generally prefer that light duty be offered for a much longer period.

FAQ No. 1: What exactly is this "interactive process" we hear so much about?

FAQ No. 2: "What does 'right to work' mean?"

FAQ No. 3: When do I have to start saving electronic evidence?

FAQ No. 4: Should I offer harassment training to rank-and-file employees? Isn't that just asking for trouble? 

Don't forget to send me your own employer FAQs! And don't forget, if you vote for Pedro Employment & Labor Insights, all of your wildest dreams will come true.

Over the next 9 business days, I'll have a series of short posts addressing common questions that employers have about the law. If there is an "FAQ" that you would like for me to address, please let me know in the comments box.

I may also have more in-depth postings as circumstances warrant.

Employer FAQ No. 3: When do I have to start saving electronic evidence?

You should start preserving electronic documents (emails, Word and Excel files, Power Point shows, etc.), as well as text messages, voice mail, and any other relevant evidence, as soon as the first of the following occurs:

*You have a credible threat of legal action (for example, a letter from an attorney with a draft complaint attached).

*An administrative complaint or charge, such as a discrimination charge with the Equal Employment Opportunity Commission, is filed against you.

*You are sued.

Of course, your normal document retention policy should require preservation of electronic and paper material, as well as photographs, drawings, recordings and videos, and anything else I've forgotten to mention specifically, for at least the longest applicable statute of limitations. The length of time will vary from state to state, but it is normally four years after termination of employment at a minimum. A "litigation hold," in which you preserve evidence because of actual or threatened litigation, extends this "default" retention period.

OK, so say I'm in a lawsuit. How long does the litigation hold have to stay in place? The hold should stay in place until the matter is absolutely, finally concluded with no further recourse by the parties. Normally, the litigation hold can be lifted when any one of the following occurs:

*The case is settled.

*The losing party has exhausted all of his appeal rights.

*The losing party has let the deadline for an appeal expire.

FAQ No. 1: What exactly is this "interactive process" we hear so much about?

FAQ No. 2: "What does 'right to work' mean?"

Don't forget to send me your own employer FAQs! And, don't forget, if you vote for Pedro Employment & Labor Insights, all of your wildest dreams will come true.

Over the next 11 business days, I'll have a series of short posts addressing common questions that employers have about the law. If there is an "FAQ" that you would like for me to address, please let me know in the comments box.

I may also have more in-depth postings as circumstances warrant.

Employer FAQ No. 1: "What exactly is the interactive process?"

The quick answer is this: The "interactive process" is simply an employer's sitting down with an employee who needs a reasonable accommodation and discussing options, directly with the employee. The "sit-down" can be a literal in-person meeting, or it can be done through phone calls, letters, or emails -- the main point is that it should be directly between the employer representative and the employee.

(In-person is obviously preferable but may not be possible with an employee who is on a medical leave, or who works in a remote location.)

The Americans with Disabilities Act requires that employers make reasonable accommodations to employees with disabilities. (And, as we all know by now, thanks to the ADA Amendments Act, just about everybody who claims to have a disability actually has one.)

The U.S. Equal Employment Opportunity Commission, which enforces the ADA, strongly recommends that you communicate directly with employees who need reasonable accommodations. Many employers spend time with their physicians, nursing staff, and with the employee's managers and supervisors, in assessing reasonable accommodation requests but neglect to discuss them directly with the employee seeking the accommodation. *head slap!*

In some jurisdictions, failure to engage in the interactive process is, in itself, a violation of the ADA. But even in jurisdictions that are less severe, an employer will be liable for failure to make reasonable accommodations if there was an effective accommodation that would have come to light if the employer had held the "sit-down" with the employee. In other words, in those jurisdictions the rule is "no harm, no foul," but if there is "harm" that could have been avoided through the sit-down, the employer has to suffer the consequences.

So, no matter where you are, having the sit-down, a.k.a. "engaging in the interactive process," is very important.

And, I'm glad to say, this isn't even a complete "negative" for employers. There are a number of reasons why an employer should welcome the ADA sit-down:

*The employee may suggest an accommodation that is easier and less expensive or disruptive than the accommodations that the employer had in mind.

*It's good for morale. The employee will feel much more warm and fuzzy about an employer who actually takes the time to have an in-person discussion about her need for accommodation. And if she feels that you actually care about her, she is much less likely to pursue legal action.

*In the case of employees with severe conditions, the employee may frankly admit that no reasonable accommodation is possible. (I have actually had this happen a number of times.) Of course, that admission will be extremely helpful to the employer later on in defending a charge or lawsuit. (Yes, I've had people admit that no accommodation was possible and then file an EEOC charge alleging failure to accommodate - go figure! But we've always won.)

Don't forget to send me your own employer FAQs! And don't forget that if you vote for Pedro Employment & Labor Insider, all of your wildest dreams will come true.

DEAR READERS: If you enjoy this blog, we'd be most grateful if you would nominate it for the 2011 Blawg 100 list of the American Bar Association. (Blawg = blog + law . . . get it?) Attorneys and employees of Constangy are not eligible to vote. All entries must be submitted by September 9. While you're at it, please cast another vote for our sister blog, Employee Benefits Unplugged. Thank you for your support!

A number of employers, non-union as well as union, have been burned recently by the National Labor Relations Board for their social media policies, or the application of those policies.

The National Labor Relations Board issued yesterday a memorandum summarizing its findings on social media cases from the past year. The memo is well worth a read, and provides helpful guidance on the Board's position.

First -- for you non-union folks, a quick summary of "protected concerted activity." The National Labor Relations Act protects even non-union employees who act together in matters related to the terms and conditions of their employment. This can include group activity (a "group" is defined as more than one employee), or even the activity of a single employee, if the employee is acting on behalf of a "group" or preparing for "group" action.

For example, in an employee meeting, two employees may complain that the company is scheduling too much overtime and that it's hindering their safe performance of the job. This is "protected concerted activity," and it would generally be unlawful for the employer to take action against the employees because they raised these concerns.

Protected concerted activity has become a big concern, thanks to the internet and social media, which make it so much easier for employees to complain "in concert," and for employers to find out about it. Anti-employer rants on Facebook, Twitter, and personal blogs are not uncommon. If your gut reaction to this is the same as my gut reaction, you are thinking, "Why in the world can't I fire an employee who calls me a 'scumbag' or an 'as**ole' on the internet?"

Because it may be "protected concerted activity," that's why.

Here is a quickie reference to the guidance provided by the NLRB. As I said, reading the full memo will be well worth your time. The memorandum also contains guidance for employers on developing social media policies that will pass legal muster.

PROTECTED:

*Employee of non-profit was scheduled for a meeting with her executive director to discuss a dispute about her job performance. She posted about it on Facebook and got feedback from her co-workers.

*Emergency medical technician was asked by her supervisor to respond to customer complaint and was denied a request for union representation. EMT posted negative comments about her supervisor on Facebook, received responses from her co-workers, and called her supervisor a "scumbag."

*Car salesman posted on Facebook photos and criticism of food offered by dealership at sales event, saying that food was too chintzy for their clientele and would adversely affect sales commissions. Co-workers commented their agreement.

*Restaurant employees posted on Facebook comments about employer's allegedly improper tax withholding practices, and one employee said employer was "[s]uch an as**ole."

NOT PROTECTED:

*Newspaper reporter tweeted (on Twitter, duh) criticisms of his copy editors and was instructed to stop it. He did, but he continued to tweet about local homicides and sexually oriented topics. Finally, he tweeted a criticism of a local television station, drawing a complaint from the TV station to the newspaper. Presumably the criticisms of the copy editors might have been protected, but there was no indication that the newspaper had terminated him for that. The other tweets were not about terms and conditions of his employment, and he didn't seek to involve other employees.

*Bartender griped to a relative on Facebook about employer's tipping policy, calling customers "rednecks," and saying he hoped they would choke on glass as they drove home drunk. 

*Employee criticized employer on Facebook wall of her Senator but no one else, and was not seeking to involve other employees.

*Employee who worked in program for people with mental health problems posted on Facebook about alleged mental illnesses of the clients, saying that it felt "spooky" being alone in mental institution, that a client "was cracking her up," and making similar comments. The only "friends" who responded were not co-workers.

*Retail employee posted on Facebook about management "tyranny" and called his assistant manager an obscene name, and said that a lot of employees were ready to quit. Although he received generally supportive comments from co-workers (like "hang in there"), the Board's regional office found that it was an "individual gripe."

NOT PROTECTED, AND ILLEGAL:

*Union business agent and three organizers went to worksite of non-union employer and began interrogating workers as to whether they were legally authorized to work in the United States, and threatening to call immigration and have the employees deported. One of the union representatives videotaped the event, and an edited version was posted on YouTube and Facebook. The regional office found that the Union unlawfully interfered with the employees' rights by interrogation, threats, and coercion, and also interfered with the rights of other employees who might have seen the video on the internet.

. . . AND IN OTHER NEWS . . .

EEOC office issues directive on preservation of electronic evidence. The St. Louis office of the Equal Employment Opportunity Commission is issuing written instructions to companies about the preservation of electronic evidence. We don't know whether other EEOC offices are doing this. On one hand, it is not a bad idea for the Commission to remind employers of their obligations in this area and may prevent them from getting into trouble with a spoliation instruction later. On the other hand, will this just give the EEOC one more weapon against employers?

He may have a superior legal mind, but he has a fool for a client. The ABA Journal reported this week that a first-year associate who was fired from his law firm job for sending an all-attorney email touting his "superior legal mind" (and related "ego" issues) is now suing his ex-firm for $77 million. Not surprisingly, he is representing himself. Pretty big case for a first-year going solo . . . one third of $77 million is, what, a little more than $25 million?

My head is spinning so fast, I feel like I'm Linda Blair. (Or, "Keepin' up is hard to do.") Remember Ricci v. DeStefano, in which the U.S. Supreme Court said that the city of New Haven, Connecticut, could not throw out the results of a firefighter promotion exam because of a racial disparity in the results? After that decision, the city complied and promoted the white guys (and one Hispanic guy), and got dismissal of a lawsuit filed by some African-American firefighters who contended that the test had a racially disparate impact. The trial court threw out the black firefighters' lawsuit on the ground that the town was doing what it had to do to comply with Ricci. Now, a three-judge panel of the U.S. Court of Appeals for the Second Circuit (which handles appeals from federal courts in Connecticut, New York, and Vermont) has vacated the dismissal -- allowing the black firefighters' lawsuit to proceed, at least for now. Poor New Haven is damned no matter what it does.

Check us out! Employment & Labor Insider was included in the August Employment Law Blog Carnival, hosted by Jon Hyman (scroll down to "Say you're sorry when you hurt somebody," but read the other fine posts, too).

Earlier this summer, in writing about reference information for bad employees (I call them "the Axis of Evil"), I mentioned employment investigations, noting that this was a topic for another post. Well, today is the day. Now that the Supreme Court has officially recognized "cat's paw" liability for employers whose decisions are tainted by an individual with an unlawful motive, it is more important than ever for employers to conduct workplace investigations that are above reproach.

And because it's more fun to talk about mistakes than what people do well, I'm going to focus on five workplace investigation errors that I see regularly.

Error No. 1. The man* who knew too much. This is a very common mistake when the investigator is someone from the same worksite as the individuals involved, and knows the "cast of characters." "TMI" is not a good thing. Hear me out. The problem is that someone who already knows the cast of characters can have a very difficult time keeping an open mind.

*The masculine shall be deemed to include the feminine, and vice versa.

Ideally, a workplace investigation will be done by someone from outside, who can investigate objectively. But if the investigation absolutely must be done by someone who knows everyone involved, the investigator should keep in mind the cliche, "Even a stopped clock is right twice a day." Just because the complaining employee is a known drama queen and the accused is a thrice-decorated war hero who rescues little kitties from the tops of trees and gives all of his money to the poor (or the complaining employee is a lovable Sunday school teacher who drives only 15 miles a week, and the accused is Tiger Woods) it is possible that, in this case, just this once, the roles are reversed. OK, probably not, but at least as an investigator you should keep that attitude to the best of your ability. You can turn your brain back on when it's time to assess your evidence and determine what really happened.

Error No. 2. Dangling leads. I cannot tell you how many times I've been asked to review an employer's investigation, and the notes say, "Joe didn't see Bill make a pass at Mary, but he said that we should talk to Susan, who works in the same area and might have seen something." I scour through the rest of the notes to find the interview of Susan, to no avail. The reason? Nobody followed up on Joe's suggestion that Susan be interviewed. Fortunately, we usually catch this type of thing while there's still time to go back to Susan and find out what, if anything, she knows. But companies shouldn't be having to waste precious legal fees hiring lawyers to point out such obvious omissions to them. (Save us for the hard stuff!) Investigators need to follow all leads provided by the accuser, the accused, and the witnesses. If they don't, and if the mistake isn't corrected before there is an EEOC charge or lawsuit, you can bet the government/plaintiff's lawyer will use the lack of follow-up to its/his/her advantage.

Error No. 3:  Accepting conclusions as "facts." Another mistake I see all the time. Investigator asks, "Is Tifanyea sexually harassing the men she works with?" Amber replies, "I feel that Tifanyea is very inappropriate with the guys." Or my personal favorite: "Oh, you know, Tifanyea is Tifanyea." These are not facts. These are conclusions, and they don't tell you anything. A good investigator will say, "Amber, tell me what Tifanyea does with the guys that you consider inappropriate," or  "Tell me what you mean when you say Tifanyea is Tifanyea." If the investigator doesn't do it, you can be sure that the EEOC or a plaintiff's lawyer will.

This, by contrast, is a factual statement: "Yesterday, I overheard Tifanyea telling Dave that his jeans really made his butt look cute. Dave turned bright red and walked away." Or this: "Every day, Tifanyea is talking about how 'hot' Steve is. Steve never says anything to her, but he's told me several times that he is uncomfortable and tries to avoid her."

See the difference? Now you have some information! 

Error No. 4: "You don't wanta get mixed up with a guy like me, Pee-wee. I'm a loner. A rebel." And you know those "Do not remove under penalty of law" tags they put on mattresses? Well, I cut one off! (Sorry - I got carried away.) In all cases, and especially if the investigation is conducted by the man* who knew too much (see Error No. 1), someone else ought to review the findings of the investigator to make sure that all leads have been followed (see Error No. 2) and that conclusory statements have been supported by facts (see Error No. 3), and that there is adequate factual support for the preliminary conclusion of the investigation. The reviewer should also assist in determining what really happened and what the appropriate action should be. The reviewer ideally should be an in-house attorney, a corporate-level Human Resources professional, or an outside attorney, preferably with expertise in employment law. He or she should also be someone who is not personally involved with the cast of characters, or only minimally involved. 

Error No. 5: "We will keep everything you say strictly confidential. Except, of course, when we talk about it." It is impossible to keep an investigation completely confidential. You cannot interview accused parties or witnesses without disclosing at least some of the reason for asking the questions. If you tell an employee that everything will be kept confidential, and then she finds out that you've been talking, she is rightfully going to be ticked off at you. Better to say, "We will keep everything that you say as confidential as we can, but of course we may have to talk about this with other people involved in the investigation. I can assure you that we will not discuss this with anyone who doesn't have a legitimate need to know." Employees are not stupid. They will understand and will appreciate your honesty.