5 reasonable accommodations an employer never dreamed it would have to make

Posted by Robin E. Shea on June 29, 2012

I know you're all poring over the Affordable Care Act, now that we have to comply with it, and trying to decide whether Chief Justice John Roberts is an evil turncoat, or a hero, or a "double agent" for the ACA's opponents . . . or for its advocates. (That's the trouble with those darned double agents.)

Alfred_E._Neumann.jpgThe heck with all that. Consider this a study break. Here are five ADA reasonable accommodations that I bet you never dreamed you'd have to make -- each one is 100% guaranteed true.

Disclaimer: Please be aware that I'm not making light of people with the medical conditions or religious beliefs described anywhere in this post.

1. No no-fault attendance policy. According to the U.S. Equal Employment Opportunity Commission, which sued Verizon (the telephone company, not the wireless company) in a massive nationwide class action, you DO have to bend your no-fault attendance policy to accommodate employees whose absences are caused by disabilities. Verizon paid $20 million to settle the case before it was even filed.

2. Extra time to take a promotional examination. Dan Schwartz of the excellent Connecticut Employment Law Blog has reported that the City of Stamford, Connecticut, got nailed a few years ago for not allowing a firefighter with Attention Deficit Disorder to have extra time to complete an examinationWindow.WyczolkowskiWiosna.jpg required for promotion. The City said that time was of the essence when fighting a fire, but the state Human Rights Office contended that the City didn't present enough evidence to support its position.

3. A window office. Potential for abuse? Ya think? A teacher in Wisconsin won a jury trial, recently affirmed on appeal, in which she alleged that she should have been assigned a classroom with windows because of her seasonal affective disorder. The teacher started out in a room with a window and then asked to teach a different grade, whose classroom happened to be on the interior of the building. After a short time in the new classroom, she experienced symptoms and submitted a psychiatrist's note requesting that she move to a place with direct sunlight. What probably hurt the school most in this case was that one teacher with a window room was willing to swap with the plaintiff, and there was a vacant classroom with windows that the school was just "holding" for potential expansion in the future.

Please check out our sister blog, Employee Benefits Unplugged, for the latest on the Supreme Court's decision mostly-upholding the Affordable Care Act. And Constangy, Brooks & Smith will be holding a webinar on the decision and the implications for employers on July 12. We hope you can join us!

4. A miniature horse. OK, you don't have to give your employee a mini-horse because that would be personal equipment or devices, which employers are not required to provide under the ADA. However, recent guidelines from the U.S. Department of Justice, which administers the "public accommodation" provisions of the ADA, say that public businesses must normally accept miniature horses, as well as dogs, as service animals. Some disabled people who are Muslim use mini-horses because dogs are considered unclean. Thanks to Eric Meyer of The Employer Handbook. Apparently a few non-Muslims prefer horses, too, for reasons that are unclear. Thankfully, the government rule says that a business can refuse a mini-horse if the horse is not housebroken or is a mini-bucking bronco. An additional positive: if your employee uses a mini-horse as a service animal because of his or her religious beliefs, then you're getting two reasonable accommodations for the price of one!

Boxer_sleeping.JPG

5. Transfer to a different job, even if more qualified non-disabled candidates are available. There is a split in the circuits on this - so be sure to check your own jurisdiction before you do anything you'llMiniHorse.JPG regret later. But the EEOC and some federal courts have said that if an employee needs a transfer to another vacant position because of a disability, and if the disabled employee meets the minimum requirements for the new job, the employer must transfer the disabled employee in preference over non-disabled candidates who are better qualified.

As they say, you can't make this stuff up (warning: bad language at the link). Next week I'll follow up with five reasonable accommodations that an employer never (well, hardly ever!) has to make. Now you can go back to reading the health care legislation so you can tell me what we have to do in 2014.

Photo credits: Wikimedia Commons (public domain).

A work-life balance audit for employers

Posted by Robin E. Shea on June 22, 2012

I apologize for the late posting. Our blog server was having severe difficulties on Friday.

Four out of five doctors* agree: work-life balance is the most, to say the least.

*Made-up statistic.

Seriously, it is. Studies have shown that employees who have lives outside of work are healthier and more productive than those who don't. They are also more satisfied with their jobs and stay on the job longer.

Nik_Wallenda_Niagara_Falls_2012_2.jpgThis topic has gained a lot of attention in the last few days, after The Atlantic published an article entitled "Why Women Still Can't Have it All" by Anne-Marie Slaughter, who left a high-level position at the U.S. Department of State to return to her job as a professor of politics and international affairs at Princeton University. Professor Slaughter, who made the move so that she would have more time with her teenage sons, concluded that you can't "have it all" in today's American workplace.

Although I don't agree with the Professor on every point, her article is thoughtful and well-written. I respect her for making her kids' well-being her top priority.

But, time out. I have a problem with the idea that she hasn't "had it all" . . . or, at least, more of "it" than most of us will ever have. First, she was with the State Department for two years. Working for Hillary Clinton. (Not a political endorsement.) Second, she had to lower her expectations to be a professor of politics and international affairs at Princeton?? That's her "scut" job? If so, I suspect she has never worked the french fry station, much less swabbed the floors in the men's room after closing time. Third, she has a jewel of a husband, another professor who was more than willing to take on the domestic and family responsibilities while she was jetting between Princeton and Washington.

For all of those reasons, I don't really want to talk about Anne-Marie Slaughter. Let's talk about work-life balance for regular people. The 99 percent, if you will.

There has been a lot of advice for employees who want to achieve work-life balance: set aside "sacrosanct" time each day and refrain from answering the phone or checking emails during that time; make sure you exercise and eat healthy; have some interests besides your job; etc.

All of which is very good advice. But the truth is, employees will not do these things if they don't feel that they are receiving the support of their employers. Otherwise, they'll just keep on being miserable workaholics*, or they'll be like Professor Slaughter and decide they can't do justice to their families and continue.

*I don't think all workaholics are miserable. Many people find great joy in their work. I'm not talking about them. I'm talking about the workaholics who don't really want to be, whether they're conscious of it or not.

So what can an employer do to encourage employees to achieve balance? It's hard to give advice that applies in all situations because there are so many variables. Is the employee exempt or non-exempt? It's generally harder to be "flexible" with a non-exempt employee, simply because you have to be so persnickety about accurately tracking her hours of work. Is the environment a manufacturing-distribution setting, in which case flexibility will be difficult, or is it a retail setting where you have to be on-site but there may be a bit more flexibility with scheduling, or is it an office setting where the work can be performed virtually anywhere anytime, thanks to the magic of the computer and the telephone?

Here is a little work-life balance audit for employers:

*Do your supervisors and managers know that work-life balance is important to the company? When was the last time you said so? Do you communicate to them that you do not want a group of miserable workaholics but a management team that has outside interests and time to pursue themBalance Beam.XXII_Summer_Olympics_in_Moscow._Balance_Beam.jpg? 

*We've all known managers who are not very flexible -- who expect everybody to be physically at the workplace from 8 to 6 or thereabouts, maybe with an hour for lunch. If the employees aren't there, they must not be working. Can you identify which of your managers have this attitude? Do you pay special attention to getting their understanding and agreement that the "traditional" model doesn't necessarily apply any more?

*Do you discourage mind-numbing, unnecessary meetings, or tasks that don't contribute anything but suck up your employees' time . . . not to mention their souls?

*If your employees perform shift work, do you do what you can to keep overtime low and minimize the disruptive effect of emergency overtime? Do you allow swapping in such situations and enough notice when possible so that they can swap? Do you strive to keep each employee on a single shift so that his or her sleep patterns and biorhythms can adjust?

*How's your technology? Are you current enough that your employees can work and communicate wherever they are?

*But, at the same time, have you clearly communicated to them that they are not "on call" for you 24/7 unless there is an urgent situation?

*You want your employees to be fit and healthy. Without being a Mayor Bloomberg, do you have healthy snacks, drinks and food available for those who want it? Do you have exercise facilities on-site, or offer free or reduced-price fitness memberships to employees? With the exception of urgent situations, do you let them have the time off that they need to get exercise and fresh air every day, preferably while the sun is up? (Vitamin D, dontcha know.) Can they exercise daily (if they want to) and still get their work done most of the time?

*Do you have a voluntary wellness program that helps employees quit smoking, lose weight, or deal with substance abuse or mental/emotional health issues if they need and want the help?

*Do your employees know that you want them to be good fathers and mothers? (After all, their kids may be working for you someday.)

*If they have other relatives (elderly parents, siblings, whatever) who have special needs, do you work with the employees so that they can fulfill their responsibilities?

*Do your employees know that you want them to be good citizens, and good human beings? You need to be careful about pressuring them to support your own pet causes, but do you encourage your employees to be involved in civic affairs, charities, and their places of worship as they see fit?

*Do you take an interest in your employees' hobbies and other extracurricular activities, to the point that they at least know you're not frowning on them?

Maybe your employees can't have it all, but if you let them have lives, they'll have an awful lot, and so will you.

 

And while we are talking about work-life balance, my firm, Constangy, Brooks & Smith, LLP, is accepting entries right now for its 7th annual Excellence in Work-Life Balance Award. If you're interested in entering your company or in-house law department, please go here to download an entry form. The deadline is July 31, and there is no cost to enter. Questions? E-mail Wendy Angel at wangel@constangy.com.

Photo credits: Wikimedia Commons (public domain).

Special Report: A quick and dirty on this week's "drug rep" overtime decision . . . and why all employers should be pleased

Posted by Robin E. Shea on June 19, 2012

Many thanks to Nathan Johnson for submitting this guest post!

Here is a brief breakdown of this week's 5-4 Supreme Court decision in Christopher v. SmithKline Beecham Corp., which held that pharmaceutical reps are subject to the "outside sales" exemption to the overtime requirements of the Fair Labor Standards Act. The Court split along the expected lines: Justice Samuel Alito wrote the majority opinion, joined by Chief Justice John Roberts, and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas.Rexall sign.jpg

Justice Stephen Breyer wrote the dissent, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

Because of the heavy regulation of the pharmaceutical industry, reps are not allowed to sell directly to the public, or even to doctors. Instead, they call on doctors and persuade the doctors to make a non-binding commitment to prescribe the companies' products in appropriate cases.

In the suit, the reps and the U.S. Department of Labor had argued that this did not meet the DOL's narrow interpretation of "sale" for purposes of the outside sales exemption.

The DOL's position, which it did not adopt until the Supreme Court granted certiorari in the Christopher case, was that "sale" required an actual transfer of title to the property at issue. The DOL claimed that its belated interpretation was entitled to deference under the 1997 case of Auer v. Robbins.

The majority disagreed. Justice Alito noted that the pharmaceutical "detail" job had existed in essentially the same form since the 1950's and that the DOL had never taken any enforcement action against a pharmaceutical company based on its treatment of reps as exempt. Adopting such a standard now, he said, would deprive the regulated community (the drug companies) of "fair warning." Granting deference would, perhaps, allow agencies "to promulgate vague and open-ended regulations that they can later interpret as they see fit, thereby 'frustrat[ing] the notice and predictability purposes of rulemaking.'"

This is obviously good news for regulated entities because they need not try to predict an agency's interpretation to avoid liability.

The latter half of the majority opinion focused on the interpretation of the FLSA's definition of "sale." In a nutshell, Justice Alito noted

*that the language of the FLSA included not only "direct sales" but also "consignments to sale"  and exchanges;

*that, in giving examples of what might be "sales" for purposes of the exemption, Congress had used the word "includes" rather than "means," indicating that the examples were not intended to be unduly limiting;

*that Congress had included "or other disposition" as a catch-all, which should reasonably be interpreted as accommodating industry-by-industry variations in methods of selling commodities.

Several practical concerns appear to have motivated the majority:

*the fact that the DOL had never taken any enforcement action against a pharmaceutical manufacturer based on this issue, which caused the employers to reasonably believe that they were properly treating the reps as exempt;

*the DOL's belated position, and in fact its change from the position it had previously taken in the Christopher case and in a similar case in the U.S. Court of Appeals for the Second Circuit;

*the fact that pharmaceutical reps are well compensated -- median pay of more than $90,000 a year -- and typically work approximately 10-20 hours of overtime; and

*the fact that approximately 90,000 pharamceutical reps throughout the United States would be potentially affected by an adverse decision, creating substantial and unexpected back pay liability for the pharmaceutical industry.

Justice Breyer's dissenting opinion agreed with the majority about what the pharamceutical rep position entailed and that the DOL's position was not entitled to deference under Auer. However, he contended that the reps' duties were more akin to "promotional work," which may be non-exempt depending on the circumstances. Under the regulations defining promotional work, such work is normally exempt if the person doing the promotion also makes the sale. On the other hand, if the person does the promotion while someone else makes the sale, the promotion work is generally non-exempt. Because the drug reps never actually made sales but only obtained non-binding commitments from physicians to prescribe the drugs in appropriate circumstances, he contended that they were performing non-exempt work and were entitled to overtime.

Photo credit: Wikimedia Commons (public domain). Robin will be back tomorrow.

Did you libel your employee in a panic and then find out you were wrong? Never be afraid to say you're sorry.

Posted by Robin E. Shea on June 14, 2012

"Love means having to say you're sorry." Wait a minute. Is that a typo? 

No. Erich Segal, I beg to differ. As anyone who has a life knows, love means having to say you're sorry a lot. And that goes for employers, too. The company apology is a fine thing, as long as it is sincere, not a "non-apology apology," and accompanied by what they call a "firm purpose of amendment."

If you don't apologize when you should, then you won't have an incriminating statement that can be usedSchool_bus.jpg against you in a lawsuit.

But if you do apologize when you should, you may never get that lawsuit at all.

Don't take my word for this. A recent decision by the U.S. Court of Appeals for the Eighth Circuit* will be far more persuasive than I could ever be.

*The Eighth Circuit hears appeals from federal district courts in the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

A retail chain expected its sales clerks to input customers' telephone numbers when processing refunds. Human nature being what it is, the clerks quickly learned that it was a lot easier to simply enter "555-5555" instead of the individuals' actual phone numbers, and so that's what they did.

A sales clerk who obviously had way too much time on his hands (we'll call him D. Duke) entered a racist epithet in the system that was one of the names associated with the default phone number. Mr. Duke, being a bad egg, was subsequently fired for other reasons, but his "calling card" lived on, undiscovered, in the bowels of the system.

One fine day our plaintiff (we'll call her Wealthie, because she's probably gonna be very soon) was waiting on an African-American customer who was making a return. Wealthie decided that the default number would be the quickest way to get the gentleman his refund promptly, so she entered "555-5555" in the register, selected the racist name without looking at it, printed out and signed the receipt without reading it, handed it to the gentleman, and no doubt smiled and wished him a nice rest of the day.

The gentleman read his receipt. BAM! Thinking that Wealthie was the perpetrator, he and his family raised Cain with the store. BAM! BAM! Poor Wealthie had no idea how that bad word got onto the gentleman's receipt, but since she was the clerk who waited on him, she was blamed and promptly dismissed from employment. BAM!BAM!BAM!BAM!BAM!

QUICKIE QUIZ

Q. Thus far, has the employer done anything illegal?

A. Probably not. The employer had a reasonable basis for believing that Wealthie had done something to cause that racist epithet to be printed on the gentleman's receipt. The employer doesn't have to prove that Wealthie is "guilty beyond a reasonable doubt" as long as it had an honest, good-faith belief that she had committed misconduct warranting termination.

OK, back to our story . . .

The story of the racist receipt went, if you'll pardon the cliché, viral on Facebook and everywhere else. The employer, faced with some major public relations problems, decided to issue a press release. The press release apologized profusely (good), said that the company was "sickened and saddened" about the incident (good), and said that the employee responsible was fired. Wealthie was not identified by name.

Newsboys_on_a_stoop,_Wilmington,_Delaware,_1910.jpgWalter_Cronkite_on_television_1976.jpg

Well, I tell you what - those folks on Facebook are good for a lot more than taking courageous stands in favor of the painfully obvious, Yelping the patty melt they ate for lunch, and Bejeweled Blitzing. They actually figured out that Wealthie was the clerk who had waited on the gentleman, and then began posting on Facebook and all over the internet the name of the "racist." Wealthie became so afraid for her safety that she left her child to live with her dad and went into hiding.

Walter_Winchell_Kiss_of_Death_trailer_scrennshot.jpg

Mary_Tyler_Moore_cast_1970.jpg

Meanwhile, within two days of Wealthie's termination, the company's IT folksMedieval_printing_press.jpg figured out that the racist code had been put into the system by D. Duke and that poor Wealthie had been a mere victim of circumstance. At worst, she was guilty of having used the "lazy" default phone number instead of her customer's actual number. And maybe she should have been paying more attention to what she was doing, but who'd a thunk???

Egyptian_Musuem_-_Part_of_hieroglyph_in_front.JPG

QUICKIE QUIZ

Now that the company knows the truth, guess the outcome!

After realizing that Wealthie was innocent, the company

a. Promptly issued another press release saying that the clerk who had waited on the gentleman turned out to be completely innocent and was not responsible for the epithet on the receipt, and that the real perpetrator had been fired long before but had apparently left this in the system as a "parting gift"; and personally apologized to Wealthie and offered to bring her back to work with back pay and no break in seniority; or

b. Issued a vague, wishy-washy follow-up press release that did not perzackly correct the record or clear Wealthie's name.

Continue Reading

The NLRB's Dos and Don'ts for employer social media policies

Posted by Robin E. Shea on June 08, 2012

The latest guidance on social media and protected concerted activity, issued last week by Lafe Solomon, Ann_Landers.jpgActing General Counsel of the National Labor Relations Board, is for the most part an unrealistic, hair-splitting mess. ("But Robin, tell us how you really feel about it!") However, there is a somewhat happy ending that I'll talk about at the end of this post.

The first two guidances, which I posted about here and here, discussed various social media policies and also a number of employee terminations based on alleged misuse of social media. The latest guidance focuses completely on policies, and I think it makes sense to boil the list down to some dos and don'ts.

To the extent that such is possible.

(For those of you who are new to this topic, you may want to go straight to the jump at the bottom of this post. At the jump, I've provided a brief explanation of protected concerted activity and the National Labor Relations Act. Then you can return to the main page here to read the Dos and Don'ts.)

Here are some statements that were made in the social media policies reviewed in the latest memo, and Mr. Solomon's position on them. In many instances, these are paraphrases or the "gist" of the statements that appeared in the actual policies. I've tried to organize them by topic.

DON'T SAY THIS IN YOUR POLICY ABOUT CONFIDENTIALITY:

"Don't release confidential information."

"Don't share confidential information with anyone who doesn't have a need to know."Loose lips sink ships.jpg

"Don't discuss confidential information on line, or in break rooms, at home, or in public areas."

"Don't reveal non-public company information on any public site 'including financial information' and 'personal information about another employee, such as . . . performance, compensation or status in the company.'"

"Don't disclose information about other employees or contingent workers.*"

*"Contingent workers" includes temporary and seasonal workers.

"Don't discuss pending legal matters."

"Don't post anything that could be deemed material non-public information/confidential or proprietary [followed by a long list of examples]."

"Don't talk about the workplace except with your co-workers."

"You may not make any public communications about the company or its business activities unless you have prior written authorization of the Communications Department."

DO SAY THIS IN YOUR POLICY ABOUT CONFIDENTIALITY:

"Develop a healthy suspicion. Don't let anyone trick you into disclosing confidential information."

"Don't post secret, confidential, or attorney-client privileged information."

"Don't disclose personal information except to those authorized to receive it."

The differences between these statements and the "DON'Ts" are subtle, to put it charitably, but Mr. Solomon's reasoning appears to be that the first "DO" is nothing more than a caution and not coercive or chilling. The second "DO" is more specific than mere "confidential information." And the third is apparently all right because under Section 7, co-workers and unions and others are "authorized" to receive personal information.

DON'T SAY THIS IN YOUR POLICY ABOUT BEING JUDICIOUS:

"If you're unsure about what to say, talk with your supervisor."

"You must be sure that your posts are completely accurate and not misleading."

"When in doubt, do not post."

"Before you post, check with us [management] to make sure it's a good idea."

"Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline."

"Don't pick fights."

"Communicate in a professional tone."

"Avoid discussing topics 'that may be considered objectionable or inflammatory - such as politics or religion.'"

"Avoid harming the image and integrity of the company."

"Don't make disparaging or defamatory comments."

DO SAY THIS ABOUT BEING JUDICIOUS:

"There can be consequences to your actions in the social media world. . . . If you're about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don't do it."

Zwei_Kanarienvögel.JPG"Any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers . . ."

The first DO is presumably all right because the emphasis is on whether the employee feels comfortable (rather than whether the company would like it). Regarding the second, Mr. Solomon has made clear in this and prior guidance memos that employers can and should prohibit harassing or discriminatory behavior via social media. As the list of DON'Ts makes obvious, the Acting General Counsel does not like it when companies tell employees to consult with management before using social media.

DON'T SAY THIS IN YOUR POLICY ABOUT COPYRIGHT/PROPERTY USE:

"You can't post photos, music videos [etc.] without the owner's permission, ensuring that the content can be legally shared, or using the company logo and explanation."

"Get permission before reusing others' content or images."

DO SAY THIS IN YOUR POLICY ABOUT COPYRIGHT/PROPERTY USE:

*Crickets chirping.*

DON'T SAY THIS ABOUT MEDIA/GOVERNMENT CONTACT:

"Media inquiries must be directed to the Communications Department." 

"If the government calls, don't talk to them except to get name and contact information. Then immediately call our Legal Department."

DO SAY THIS ABOUT MEDIA/GOVERNMENT CONTACT:

"You should not speak to the media on the company's behalf without contacting the Communications Department. All media inquiries should be directed to them."

The "DO" passed muster apparently because, unlike the "DON'T," it used "should" instead of "must," and had the qualifier "on the company's behalf." Mr. Solomon didn't like the mandate to contact Legal in the event of a government investigation because that could hinder investigations by the NLRB into the company's practices. But, of course.

DON'T SAY THIS IN YOUR POLICY ABOUT "REPORTING" TO THE COMPANY:

"Before you  post, check with us to make sure it's a good idea."

"Report any unusual or inappropriate internal social media activity."

"You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. . . . consider using internal resources . . . to resolve concerns."

"Report any 'unsolicited or inappropriate electronic communications.'"

DO SAY THIS IN YOUR POLICY ABOUT "REPORTING" TO THE COMPANY:

*Crickets chirping*

DON'T SAY THIS IN YOUR POLICY ABOUT USING SOCIAL MEDIA ON THE CLOCK/AT THE WORKPLACE:

"Don't use social media using our resources or on company time."

DO SAY THIS IN YOUR POLICY ABOUT USING SOCIAL MEDIA ON THE CLOCK/AT THE WORKPLACE:

"Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use our email addresses to register on social networks, blogs or other online tools utilized for personal use."

A word about the "Section 7 disclaimer." Finally, a "Section 7 disclaimer" in your social media policConcert_by_Lorenzo_Costa.jpgy probably doesn't hurt, but Mr. Solomon's guidance indicates that it probably won't help, either. These disclaimers seemed like a good idea when he first let us know that he was taking such a restrictive view of employers' rights in connection with employees' use of social media. Many employers added language to their social media policies saying something to the effect of, "Nothing in this policy should be construed to interfere with employees' exercise of their rights under Section 7 of the NLRA." (I am oversimplifying.) Mr. Solomon has consistently said that these disclaimers do nothing to mitigate an unlawfully overbroad social media policy.

Frustrated? In despair? Walmart to the rescue! I told you that this post would have a happy ending. Mr. Solomon's guidance on social media policies is, in my opinion, hair-splitting if not internally inconsistent and has its own chilling effect on employers' ability to ensure that social media is not used to the detriment of the company or its employees.

It could be worse, though. To Mr. Solomon's credit, the third guidance (beginning at page 22) includes an entire policy that he has declared lawful. (I! am! not! kidding!)

Hallelujah! Thank you, Walmart! Give the guy or gal who drafted this policy a big bonus and a promotion.

So, my biggest "DO" of the day -- DO use the Walmart policy as your go-by, and go in peace.

Just a reminder - if you're new to the issue of social media and protected concerted activity, or need a quick refresher, please click below for more.

Photo credits: Wikimedia Commons (public domain).

Continue Reading

Employment and Labor Roundup: Defense of Marriage Act decision, drugs, NLRB update, and more!

Posted by Robin E. Shea on June 01, 2012

Giddyap! It's been a short week, but we have tons to talk about in the labor and employment law world!

Thinking out loud about the impact of yesterday's DOMA decision on the Family and Medical Leave Act. The U.S. Court of Appeals for the First Circuit* held yesterday that Section 3 of the federal Defense of Marriage Act was unconstitutional. Section 3 provides that, for purposes of benefits under federal law, "marriage" is defined as the union of one man and one woman. Therefore, spousal benefits under Social Security or other federal programs are not available to same-sex married couples.

*The First Circuit hears appeals from federal courts in the states of Maine, Massachusetts, New Hampshire, Rhode Island, and in Puerto Rico.

Section 2 of the DOMA, which allows each state to decide whether to recognize same-sex marriages from states where that is legal, was not at issue in the case.

Here's the normal, pre-DOMA rule, which still applies to opposite-sex couples: If the couple's marriage is valid in the state where they got married, then they are recognized as "married" in all 50 states, even if some of those states don't recognize that type of marriage. Before the past 10 years, this issue arose most frequently with common-law marriages. (I don't care what Wikipedia says about the hyphen -- I'm using one! So there!) Newlyweds_Ronald_Reagan_and_Nancy_Reagan_1952.jpg

The DOMA, enacted during the Clinton Administration, changed that general rule to allow states the option to refuse to recognize same-sex marriages, and had the effect of barring same-sex married couples from receiving spousal benefits available under federal law.

So, would the First Circuit decision apply to FMLA leave?

The Family and Medical Leave Act does not allow an employer to charge time against an employee's leave entitlement unless the employee absolutely, positively qualifies for FMLA leave. Because of that, and the interaction of the DOMA with the FMLA, we had recommended to employers in states that didn't recognize same-sex marriage to grant spousal leave to same-sex spouses if the employers were so inclined but that there was no obligation to do so. We also told them to NOT, under any circumstances, charge the time as "FMLA leave." Otherwise, the same-sex spouse might need some "real" FMLA leave later in the year, and if the employer denied it on the grounds that the leave allotment had been exahusted, the spouse might have had an FMLA interference claim.

Yesterday's First Circuit ruling may mean that an employer -- even in a state that doesn't recognize same-sex marriage -- must nonetheless grant FMLA leave to an otherwise-qualified same-sex spouse. But, if so, the employer would also be able to charge the time against the spouse's FMLA entitlement. In other words, the employer arguably should treat the same-sex spouse exactly the same as it would treat an opposite-sex spouse.

The DOMA decision, which is stayed pending possible Supreme Court review, will obviously have a significant impact on many other benefits-related issues.

Beware of the GINA! The U.S. Equal Employment Opportunity Commission got slapped down for yet another overbroad subpoena, which is good news. The bad news is that they're going after an employer (Nestle) that allegedly sent an employee for a fitness-for-duty exam during which the physician asked about the employee's family history for certain medical conditions. Just a reminder that this is now illegal under the Genetic Information Nondiscrimination Act, even if the medical exam would otherwise be legitimate, and even if the doctor doesn't share the information with you, the employer. To protect yourself, be sure to include the GINA "safe harbor" language (scroll to the bottom of the post) on the paperwork that you provide to the employee and the physician.  

Thankful for small favors. The U.S. Court of Appeals for the Eighth Circuit, which hears appeals from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, found that a guy who was fired for fighting with his foreman didn't have a valid claim under the Americans with Disabilities Act. The case was a little less open-and-shut than it sounds at first -- the plaintiff had an IQ of 56 and claimed that his mental disability contributed to the behavior. The court affirmed a decision granting summary judgment to the employer. Generally, an employee is not protected from the consequences of bad behavior, even if the bad behavior results from a disability.

Flynn says "bye" to NLRB. Terence Flynn, President Obama's Republican appointee to the National Labor Relations Board, tendered his resignation this week, to take effect July 24. In the meantime, he will recuse himself from all NLRB business. While serving as counsel to Board Member Brian Hayes, Flynn allegedly leaked information about Board business to two former Board members, Peter Kirsanow and Peter Schaumber, after the latter had gone into private practice. Hayes, Kirsanow, and Schaumber are all Republicans. Flynn was one of Obama's controversial "recess" appointments made over the holidays, along with Democrats Sharon Block and Richard Griffin. The other remaining members of the Board are Chair Mark Gaston Pearce and Hayes. Hayes is the only Republican who is still active.

NLRB issues third guidance on social media. Lafe Solomon, Acting General Counsel of the NLRB, has issued his third guidance document on social media. I will devote a full post to this next week. I posted about the first and second guidance documents here and here. Hat tip to my partner Chuck Roberts for passing this along.

Drugs. What's an employer to do? Last Friday, I posted about whether medical marijuana use is protected under the ADA. By the end of the Memorial Day weekend, I was beginning to despair of an employer's ability to keep up with the many ways that people try to get around drug laws and drug tests. The human spirit is a many-splendored thing. (If only we spent this much effort on being sober and working!)

Over the weekend, we heard about Rudy Eugene (killed by the police in the ghastly Miami Causeway incident), who was allegedly high on bath salts.BathSalts.JPG There has also been internet speculation that Trayvon Martin's "Skittles and iced tea" may have been 2/3 of a recipe for a variant of "lean," which (I have now learned) is a mixture of soda pop, Jolly Ranchers, and cough syrup with Codeine or Dextromethorphan. The latter is the active ingredient in Robitussin cough syrup. You sip your "lean" and get high.

(Please note that we don't know whether Mr. Eugene or Mr. Martin actually used these substances. It's all speculation at this point.)

Would a drug test pick up bath salts? Presumably it would detect codeine or Dextromethorphan, but the latter is available in legitimate over-the-counter drugs. If the employee was able to produce or forge a prescription for codeine, the employer would be stuck there, too.

Here's a trip down Memory Lane (popular ways to get around drug tests, all of which are usually foiled by employers and their testing labs):

*Swapping urine samples. FOILED because the samples were always too cold.

*Swapping urine samples and microwaving the "substitute" sample so it would be warm. FOILED because nuking just made the outside really hot while the center was still cold. Dude. Use a slow-cooker instead.

*Claiming "shy bladder." FOILED because employers started requiring a medical excuse for this problem, and most of the testees who claimed it couldn't get one.

*Drinking gallons upon gallons of water before the test to dilute the sample. FOILED because the labs tested for "specific gravity" and determined that the sample was "adulterated" if it was too diluted. (Testees could be excused if they produced documentation of a medical condition that might have caused the result.)

Bottled_water_in_supermarket.JPG

*Use of devices like the "Whizzinator," which allowed the testee to swap a clean sample for his or her own but keep the substitute sample against the body so the substitute would stay close to 98.6 degrees. Also, the device was a fake male organ (which didn't work so well with women, but they supposedly have a female device, too), so a guy taking a drug test could make it look like he was really providing a urine sample from his own body. FOILED because it was originally made of metal and "clanged" when the testee was producing the sample. (Now it appears to be made of some type of plastic or rubber, so it may work a little better.)

Whatever will they think of next? Who knows? Meanwhile, be sure that you treat any type of dishonesty in connection with a drug test as ground for discharge or permanent disqualification from hire. You should do this even if you allow employees who are honest enough to test positive to go through rehabilitation and come back to work with a last-chance agreement. Don't do that for someone who cheats. Tell 'em to hit the road and dontcha come back no more.

Photo credits: Wikimedia Commons (public domain).