Employment and Labor Insider - Legalese Is Not Spoken Here

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?

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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!

The Wall Steet Journal has a feature on "Five of the Costliest Tweets Ever." (Subscription required, but I'll tell you all you need to know below.) This morning, Jon Hyman of Ohio Employer's Law Blog tweeted a link to a great flow chart from HR Bartender entitled "Should I Send This Email." Both are worth reading.

Number 1 of the "Five Costliest Tweets" was, of course, our old friend, former Congressman Anthony Weiner. If you don't know enough to refrain from tweeting what Wiener tweeted, then you probably don't read this blog, and it wouldn't do you any good if you did.

But Rep. Weiner aside, some of these tweets were not so clearly idiotic, and so they provide good lessons for employers and everyone else.

Case No. 2 - A juror in a murder trial tweeted, despite the judge's instructions not to talk about the case. Now the convicted defendant gets a new trial at an estimated taxpayer cost of $600,000. Pretty dumb of this juror not to listen to the judge, but the tweet that was quoted struck me as innocuous (if a bit self-important): "Choices to be made. Hearts to be broken. We define the great line." Criminal defense lawyers said the judge was right to order a new trial.

MORAL: A running narrative of your life on social media* is not only boring to everyone but you, but it will make your fellow jurors, who lost a week of work and agonized over a life-and-death decision for nothing, really mad at you.

*Facebook users, you know what I'm talking about: "Doing laundry. Then gas and a cheeseburger at McDonald's. Weather today is partly cloudy." With photos of before-and-after laundry, gas pump, cheeseburger sitting on top of crinkled yellow wrapper, and a gray cloud.

Case No. 3 (employment related) - Mickey Arison, owner of the Miami Heat, was fined $500,000 by the National Basketball Association for tweeting about contract negotiations with the players, in violation of NBA rules. The WSJ didn't provide details, but according to Bossip, Arison responded to a tweet from a disgruntled fan who criticized "greedy owners." Arison said, "You're barking up the wrong tree," which allegedly undermined the owners' claim to have a united front against the players. In another tweet, Arison was asked what he thought of Donald Sterling, owner of the LA Clippers, and Arison responded "lol."

MORAL: When you're tweeting, don't be a maverick. Tehe - get it?

Case No. 4 - Spirit Airlines was fined $50,000 for tweeting about $9 one-way air fares from Los Angeles because the tweets didn't include the fine print about taxes and fees charged in addition to the air fares. C'mon, DOT, cut 'em a break - what are they supposed to do with only 140 characters?

MORAL: Never tweet about air fares. You will never be able to fit all those required disclaimers in a tweet.

Case No. 5 (employment related) - Octavia Nasr, a senior editor for Middle Eastern affairs at CNN, was fired after 20 years for tweeting that she was sorry a man had died and that she respected him "a lot." (What?) Well, it's like this. You see, it turned out that the deceased was an ayatollah who criticized U.S. foreign policy and, according to the Wall Street Journal, had expressed support for suicide bombings in Israel. (Oh.) Ms. Nasr apologized and explained that she respected him because he was relatively progressive about women's rights . . . (as ayatollahs go?). Her explanation didn't save her job. One of her bosses was quoted as saying that Ms. Nasr should not have made such a "simplistic" comment without "context." But, in Ms. Nasr's defense, how do you do "context" and "nuance" in 140 characters?

Answer: You can't. So if you have something "nuanced" to say, use another forum.

MORAL: If you can't tweet ill of the dead, then don't tweet anything at all.

FREE BONUS POST! Here are my top five email mistakes:

1. Overuse of "Reply All." Not everybody needs to know everything, duh.

2. Hostility or argument expressed via email. I don't think every substantive communication needs to be face to face, but if you have a problem or are in an argument with someone (or even think it may move in that direction), you should call or discuss it face to face. If the "real-time" discussion doesn't resolve the problem, then you might need to confirm that in an email, but keep the email courteous and constructive.

3. Snarky comments in emails that are not attorney-client privileged. Lawyers can get away with some snark (at least, when they're talking with or about client matters) because of the attorney-client privilege. But HR people and managers, and other non-lawyers, emailing among themselves, cannot. In more than one lawsuit we have had to turn over to our adversaries emails with snippy comments that the authors deeply regret having made in hindsight. When you're annoyed with an employee, use your mouth to get it off your chest -- don't put it in an email. I have yet to hear of someone being sorry that they didn't express a nasty thought in an email.

4. Snarky comments about other people in emails, period. Before you send an email, think about how you will feel if the person you are talking about gets hold of it somehow. Especially after you've made up. Or he gets a promotion and becomes your boss. This can and does happen. Is it worth it to ruin your relationship with a co-worker so that you can vent a little in a "perpetual" format? Again, if you're frustrated, go run around the block, or vent some other way.  

5. Jokes (sexual, racial, ethnic, or otherwise), videos, chain emails, etc. Need I say more?

*CONFESSION IS GOOD FOR THE SOUL: At one time or another, I have violated every one of these five email rules. With the exception of sending chain emails, which are of the devil.