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.)

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!

It's been another zany week or so in the world of labor and employment law, rivalling Groucho, Harpo, Chico and Zeppo. Here are a few items that jumped out at me. (Each subhead is a line from a Marx Brothers movie or the title of a Marx Brothers movie. Answers at the end.)

"Hurry up, or you'll be late for jail!" Pepsi Beverages (formerly Pepsi Bottling Co.) agreed to a pre-litigation settlement of $3.13 MM to resolve charges that it considered arrest records in making hiring decisions, which, according to the U.S. Equal Employment Opportunity Commission, meant that approximately 300 otherwise-qualified African-American applicants were rejected. The rejected applicants will be offered positions with the company as part of the settlement. The EEOC is on record as strongly opposed to the use of virtually any criminal background information in connection with employment decisions. However, it appears that the company was using arrest as well as conviction information, which has been a no-no for a long time, and was flatly rejecting anyone with a "history" instead of considering the impact of the conviction on the particular job . . . another no-no. The company has agreed to revise its employment policies as part of the settlement.

Horsefeathers. A federal judge in Chicago denied a motion to compel in a class action filed by the EEOC against carrier DHL, alleging widespread racial segregation in job assignments. DHL requested detailed information and documents from each class member about subsequent employment, as well as personal medical information. The judge denied the request for information about subsequent employment because the EEOC had abandoned its claim for back pay or front pay -- therefore, that information was not "reasonably calculated to lead to the discovery of admissible evidence." Although the EEOC was seeking compensatory damages for emotional distress, the judge held that the medical information did not have to be produced because the agency was seeking only "garden-variety emotional distress" based on humiliation, embarrassment, and the like. Not all courts have bought this "garden-variety emotional distress" argument. Some have found that if a plaintiff pursues an emotional distress claim, he or she has opened the door to discovery of evidence regarding her medical, mental, and emotional condition.

"The party of the first part shall be known in this contract as the party of the first part." National Labor Relations Board Chairman Mark Pearce and now-ex-Member Craig Becker invalidated an arbitration agreement that precluded employees individually from pursuing class or collective actions. (Member Brian Hayes, the only Republican on the Board at the time, had recused himself.) Pearce and Becker said that the agreement interfered with employees' rights under Section 7 of the National Labor Relations Act to "engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .." Significantly, the employer was non-union and the agreement was not collectively bargained. The two-member panel invoked the same "protected concerted activity" clause that has been used against non-union employers who crack down on employees who use social media to rant about their employers.

Monkey Business. Speaking of the NLRB, President Obama and the Republican members of Congress have been in quite a battle over recess appointments. Yesterday the U.S. Department of Justice released an internal memorandum that supported the President's position. A recap: As we have reported before, Member Becker's recess appointment to the NLRB expired at midnight December 31, and his last day at work was January 3. Becker's departure left the Board with only two members (Pearce and Hayes) and three vacancies, and the Supreme Court has said that a three-person quorum is necessary for Board action. In an attempt to prevent Obama from making more recess appointments, the Republicans held pro forma sessions every three days during their holiday break. No business was conducted during the pro forma sessions, which lasted about one minute each. Technically, this meant that Congress was not "in recess" for the whole break and that Obama therefore would not be authorized to make any recess appointments. However, Obama outmaneuvered the Republicans (for now, anyway) and, armed with the DOJ memorandum, which declared the pro forma sessions a technical maneuver that could be ignored, made recess appointments to fill the three vacant positions. Legal challenges are sure to ensue. Bring your popcorn.

"Hail, hail Freedonia, land of the brave . . . and . . . free!" In a nice victory for religious employers, the Supreme Court unanimously held that there is indeed such a thing as a "ministerial exception" to the federal anti-discrimination laws arising from the Establishment and Free Exercise clauses of the First Amendment, and that it applies to people other than the clergy. The plaintiff in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC was a teacher who was formally considered a "minister" in the church and taught religion and led devotions and worship services, but who spent the majority of her time teaching "secular" subjects. She alleged that her employment was terminated in retaliation for exercising her rights under the Americans with Disabilities Act. Although many lower courts had recognized the ministerial exception, the Supreme Court had not addressed the issue. The EEOC and the government had argued unsuccessfully that the exception was unnecessary. The decision means that, if a court finds that the ministerial exception applies to a case, the case will be dismissed. (Religious employers who are not Protestant Christians will be particularly interested in the concurring opinion by Justices Samuel Alito and Elena Kagan -- not a combination you see every day! -- in which they provide an excellent discussion of how the exception should apply to employees who perform religious functions but are not "ministers.")

"I'll see my lawyer about this as soon as he graduates from law school." The U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment in a lawsuit filed by a library employee of Ohio State University who alleged that he was ostracized and constructively discharged after he recommended a "freshman-reading" book that had a chapter describing homosexuality as aberrant behavior. The Court found that the plaintiff had waived his claims for damages by first having filed a state-court lawsuit. (Under Ohio law, this results in a waiver of the right to recover damages in any other forum.) His First Amendment retaliation claim was subject to dismissal because, although his speech pertained to a matter of public concern, he spoke in connection with his job duties and not as a "citizen." He also could not establish "adverse action" because both his dean and his immediate supervisor had supported him, even though many of his peers were vocally critical of him and had called for his termination. Finally, the Court rejected his claim that the OSU sexual harassment policy was unconstitutionally overbroad and vague.

MARX BROTHERS TRIVIA:

"Hurry up, or you'll be late for jail!" A Night at the Opera, 1935.

Horsefeathers, 1932.

"The party of the first part shall be known in this contract as the party of the first part." A Night at the Opera, 1935.

Monkey Business, 1931.

"Hail, hail, Freedonia [etc.]" Duck Soup, 1933.

"I'll see my lawyer about this as soon as he graduates from law school." Duck Soup, 1933.

What a year, am I right or am I right? Here is a catalog of the major employment and labor law developments from 2011. And, just to keep it entertaining, I've started off each month with a weird but true off-topic story that was in the news that month. Many thanks to Drudge Report archives for the strange stuff. Thanks also to Esquire magazine's annual Dubious Achievement Awards (sadly, discontinued in 2008) and Dave Barry's Year in Review, both of which I am ripping off paying homage to.

Now, fix me a drink, will ya? We have a lot to talk about.

JANUARY

Ah-choo! Some teenage burglars stole an urn that contained the cremated remains of a man and two great Danes. The teens, obviously not criminal masterminds, snorted the ashes, believing them to be cocaine. 

and . . .

"He*l, they're all disgruntled. I ain't runnin' no da*n daisy farm!" The EEOC reported that for fiscal year 2010 it received a record number of charges, and that retaliation charges surpassed race discrimination charges for the first time in history.

Express yourself. The U.S. Department of Labor issued guidance on its "lactation accommodation" provisions in the Patient Protection and Affordable Care Act (aka "Obamacare") and requested feedback from the public.

GINA: It's more than just a pretty name. The Genetic Information Nondiscrimination Act, which prohibits the acquisition, use or disclosure of "genetic information," which includes family medical history information, took effect.

Nice family. I'd hate to see somet'ing happen to 'em, ya know? The Supreme Court held in Thompson v. North American Stainless that the Title VII anti-retaliation provisions extend to fiances and other significant others of the person who engages in legally protected activity.

FEBRUARY

"Of course, you realize this means war." Uber-disgruntled ex-employee Charlie Sheen declared war on his former employers CBS and Warner Brothers.

and . . .

Another county heard from. (Or is it "country"?) Constangy, Brooks launched the most-excellent Employee Benefits Unplugged, which covers income tax, executive compensation, 401(k) and 403(b) plans, fiduciary compliance, and Department of Labor and Internal Revenue Service audits. All of the attorneys in the firm's Employee Benefits Practice group contribute, but the Chief Blogmistress is Jewell Lim Esposito from the firm's Fairfax, Virginia office.

MARCH

I hate to say "You can't make this stuff up," but you really can't make this stuff up. A New York man who had a court appearance on a DWI charge showed up with an open can of beer and (allegedy) was carrying a bag with four more cans of beer. The man, who had prior DWIs, was jailed with no bail.

and . . . 

At the stroke of a pen, entire nation becomes disabled. The EEOC issued its Final Rule interpreting the Americans with Disabilities Act Amendments Act.

Make sure your "paws" know the laws. The U.S. Supreme Court found in Staub v. Proctor Hospital that an employer could be liable under a "cat's paw theory" for employment decisions that were influenced by a supervisor or other member of management who had an unlawful motive.

APRIL

Study: Members of Congress give each other much less grief than they deserve. A Harvard professor conducted a study that concluded that members of Congress spent 27 percent of their time taunting each other.

and . . .

Life begins at Concepcion. The U.S. Supreme Court found in AT&T v. Concepcion that arbitration of class claims was ok and consistent with the policy underlying the Federal Arbitration Act. The Concepcion decision overruled the interpretation of the California courts that class claims could not be arbitrated.

OFCCP starts pilin' on. The Office of Federal Contract Compliance Programs issued a proposed rule regarding the obligations of federal contractors to recruit and hire veterans. Although the desire to help veterans is laudable, the rule would impose significant compliance burdens on federal contractors.

Nothing could be finah . . . The NLRB filed a complaint against Boeing Corporation for opening a production line in North Charleston, South Carolina, instead of the outskirts of Seattle, Washington, where most of its production was located. The Board alleged that the move to right-to-work South Carolina was the company's unlawful attempt to avoid dealing with the International Association of Machinists, which had carried on a number of strikes at the Washington State facility over the years.

MAY

Cannibal Lecter. A man ran an internet ad seeking someone "who would agree to be killed, cooked, and eaten." A Swiss man answered the ad, thinking it was just a fantasy game, but after talking with the "cannibal" on the phone, determined that he was deadly serious. (Tehe. Get it?) The would-be "meal" called the police, who answered the ad undercover and foiled the banquet.  

and . . .

"I'm a victim of soicumstance!" (Probably true.) Bruce Raynor, President of the Workers United affiliate of the Service Employees International Union and International Executive Vice President of the SEIU, was forced out of both positions after being charged with filing misleading expense reports. Raynor, a labor leader for 38 years and who had been president of UNITE and UNITE HERE for eight years before joining Workers United, contended that he was a victim of SEIU politics.

Kiss our apps! The U.S. Department of Labor launched its wage and hour recordkeeping app (at link, scroll down to "Email your timesheets directly to Big Brother!") for iPhones and iPods, with a promise to develop counterparts for Androids and Blackberrys.

Labor pains. The NLRB sued the state of Arizona over a constitutional amendment that protected the right of employees to have secret ballots in union representation elections. The Board contends that state constitutional amendments like Arizona's are preempted by the NLRB. It has also sued the state of South Dakota for the same reason.

Your money, or your life. The OFCCP proposed changing the scheduling letter that it sends to federal contractors who are being audited. The changes would require contractors to provide detailed, individualized information about employees' compensation, among other proposed changes.

Continue Reading

The American Bar Association sponsored a webinar this week on the Americans with Disabilities Act, which was noteworthy for its inclusion of EEOC commissioners Chai Feldblum (Democrat) and Victoria Lipnic (Republican).

I'm usually such a doom-and-gloomer when it comes to the amended version of the ADA. But 'tis the season to be jolly, so I have decided to be more positive (just this once, anyway). The EEOC commissioners raised a number of points that work in favor of employers.

Feldblum and Lipnic said that the EEOC is drafting new guidance on reasonable accommodation. The guidance may include what an employer can say to resentful co-workers who don't realize that the employee has a disability. Some realistic, practical advice in this area would be most welcome -- as it is now, confidentiality rules prohibit employers from saying anything, even if it might help co-workers understand and be more tolerant.

Regarding leaves of absence and the ADA, Lipnic recommended that the employer contact an employee who is at the end of a medical leave and ask whether the employee needs an accommodation to be able to return to work, or whether some additional leave (a limited amount, we hope) would allow the employee to return. Lipnic believes that this would probably satisfy the employer's obligation to avoid an "automatic" termination when the employee reaches the end of the leave.

Feldblum cautioned that "people who know about the ADA" should make termination decisions when employees reach the end of their medical leaves of absence rather than third-party administrators who may not have ADA expertise. 

All right, it's "happy time" now!!! Fa-la-la-la-la-la-la-la-la. Here are your rights as an employer under the ADA, straight from the EEOC's mouth:

1. You have the right to make reasonable accommodation decisions as you always have in the past. The ADA Amendments Act changed the definition of who is "disabled" but did not change the employer's reasonable accommodation obligations.

2. You have the right to make reasonable accommodation decisions on a case-by-case basis, and, indeed, you should. In some ways, this is a negative (because you can't just follow a flat policy in all cases), but in other ways it's positive for your business because you can and should consider the employee's job, the employee's specific medical condition, and the specific abilities and limitations of that employee.

3. You have the right to deny reasonable accommodation to an employee who claims only that he or she is "regarded as" having a disability. (Note, however, that a "regarded as" disability can overlap with an "actual" disability. You do have to consider reasonable accommodations for the latter.)

4. In accommodating a job applicant, you must remove barriers to the application process, but you still have the right to hire the most qualified candidate for the job. Yay!!!!

5. As Feldblum noted, an employee must "get the work done" notwithstanding the disability. Thus, even though the employer must "stop, think, and justify" work rules and make changes to the rules where needed, the employer does not have to forgo having the work performed.

6. In most cases, you have the right to do nothing until an employee or applicant makes an accommodation request. Generally, it is the employee/applicant's responsibility to request an accommodation unless the disability is obvious. However, the employee may make the request in "plain English" and does not have to specifically mention the "ADA" or "reasonable accommodation."

7. You have the right to request documentation before making a decision on a reasonable accommodation request. As Feldblum said, this is "absolutely legitimate" on the employer's part. In addition, Lipnic said, the employer has to have "a level of awareness" that the individual is requesting a reasonable accommodation. (But see #6.)

8. Although you may have to grant additional leave as a reasonable accommodation (in excess of what is required under the Family and Medical Leave Act, or even your own policies), you do not have to worry about compliance with the FMLA once the 12-week/26-week entitlement has been exhausted. Moreover, in determining whether additional leave would be an "undue hardship," any leave already taken -- including FMLA leave -- should be included.

9. You don't have to specify "essential functions" in a written job description, although it's a nice thing if you can do it. According to Feldblum, failure to put essential functions in writing is "not fatal," presumably because the EEOC and the courts give more weight to the way the job is actually performed, not what's on a sheet of paper.

10. You have the right as the employer to decide which job functions are "essential." (But don't forget that accommodation of "marginal" functions may require you to remove the function completely from the disabled employee's job.)

OK, I realize these are kind of weak, but they're the best we're gonna do. Strike the harp and join the chorus, man. Fa-la-la-la-la-la-la-la-la!

I feel as if all I ever do these days is write about the Americans with Disabilities Act, but what else can I do? In the last six weeks, the Equal Employment Opportunity Commission has filed 21 lawsuits -- count em, 21! -- against employers alleging disability discrimination.

This is in addition to the $20MM settlement with Verizon (which I reported on earlier), not to mention a record high of ADA charges in fiscal year 2010, the most recent year for which statistics are available.

The EEOC is clearly feelin' frisky and also, if not trying to get a fast buck through pre-lawsuit settlements, trying to get some court precedent expansively defining who is disabled (yes, even more expansive than the plain language of the ADA Amendments Act, which is pretty flippin' expansive already) as well as an employer's obligations to make reasonable accommodations.

Many of these employers have sought to cut their losses, including but not limited to* Verizon (which agreed to the $20MM pre-lawsuit) and Starbucks Coffee Company (which agreed to pay $75,000 to the dwarf barista who was terminated only three days after being hired because she needed a stepladder or stool behind a busy counter where she and her fellow baristas ferried piping hot lattes hither and yon).

*Legalese alert.

But some employers are hanging in there for now, and I hope they'll continue to do so. I'm not at all convinced that the courts will agree with some of the extreme positions being taken by the EEOC.

Meanwhile, I thought it would be fun on this Friday to play detective by deducing the arguments that the employers will make in their defense and predicting the outcomes of some of these contested cases.

Because these lawsuits have been filed only recently and the employers have declined public comment, actual details are not available. Accordingly, I will report the EEOC's side of the story based on its press releases and will "fill in" what I expect the employers' sides to be. I will then make my best prediction (i.e., "guess") based on that. In other words, don't take this seriously.

(Cue up Perry Mason theme song. Would that be a sweet ring tone, or what?)

Walgreen: The Case of the Pilfered Potato Products. (I wanted to entitle this one "All that and a bag of chips," but another blogger beat me to it.) This case has received more publicity than the others, but Walgreen has nonetheless declined to comment.

According to the EEOC, a cashier who was diabetic grabbed a store merchandise bag of potato chips worth $1.39 and ate them to stave off low blood sugar. She paid for the chips "as soon as she was able to do so." (In other words, she didn't pay for them promptly, even though she was at the cash register.) She was fired, presumably for stealing store product. As we all know, diabetes is now a "disability" within the meaning of the ADAAA. Walgreen should have accommodated her medical-emergency need for a bag of potato chips.

I expect Walgreen's defense to run something like this: As a retail employer, we have to be vigilant about theft of store product, aka "inventory shrinkage," which causes us to lose $X billion a year. This employee knew that theft in any amount, no matter how small, was ground for immediate discharge, and it's in our employee handbook, and we include it in new-employee orientation, and we have her signature on documentation showing that she was instructed about this upon hire. We were not aware that she was diabetic, but if she had problems with low blood sugar, she should have brought snacks with her to work so that she could nibble when she needed to do so. If this was unexpected, she should have eaten our chips and then promptly paid for them, since she was already stationed at the cash register and had her purse right there under the counter. If her purse was in her locker, she should have immediately notified the manager on duty or a co-worker that she'd eaten the chips and would pay for them as soon as she could get to her purse. She also could have placed a handwritten "IOU" in the cash register. She did none of these things, and we caught her on video eating the chips. She paid for the chips only after we confronted her about it, and at that point it was too late.

So, who wins? Assuming Walgreen can prove what I've just said, my vote is for Walgreen. On the other hand, if it turns out that the cashier really had no way to get to her money and no way to notify someone else that she'd eaten merchandise without paying for it, perhaps the EEOC has a chance.

McDonald's: The Case of the Despicable Demotion.

According to the EEOC, when a new company took over management of a McDonald's franchise in California, it demoted a floor supervisor who had cerebral palsy to janitor, cutting his pay and hours, even though the former supervisor was performing well.

I expect the franchisor's defense to run something like this: This employee's disability had nothing to do with his demotion. We got in there and found that the former franchisor had made a complete mess of things, and we had to make a lot of changes. We did a general restructuring, and this guy was only one of 20 supervisors we demoted. We offered to let him flip burgers or do fries, but he told us that the janitorial job was safer because of his condition (less risk of being splattered with hot oil). We explained to him that we didn't need a full-time janitor, but he chose that anyway, so we were like, Fine. Then he quit because he wasn't making enough money as a part-time janitor.

So, who wins? At this very preliminary stage, I would go with the EEOC. Regardless of what the law says, the burden will rest heavily upon the franchisor to prove that this individual was not demoted because of his cerebral palsy. If it can do so, and if its case is as I've predicted, then the franchisor should be able to win summary judgment. Otherwise, it's a jury trial, and the franchisor can expect to be creamed for (allegedly) picking on a guy with cerebral palsy who, at least according to the EEOC, was well liked by his bosses and co-workers and a good worker. A few years ago, Walmart was clobbered in a case where a pharmacy employee with cerebral palsy was demoted to collecting shopping carts in the parking lot.

Bank of America: The Case of the First-Day Firing

According to the EEOC, BOA hired a data entry clerk who was legally blind and then fired him after one day on the job without trying to accommodate him by offering, for example, a larger monitor, larger font sizes, or anything else. BOA knew he was impaired.

I expect BOA's defense to run something like this: Darn right we knew he was impaired, and we were fine with that. We know our obligations under the ADA, and we comply with them and make reasonable accommodations gladly. In fact, the individual who hired this guy was the same individual who fired him after his first day on the job, which proves that he was not discriminated against because of his disability. Regarding font size, all he had to do was go to "View" on the toolbar and select "Zoom In," and he could have had fonts as big as a house. We also would have been willing to provide a larger monitor if we'd needed to. But in this guy's case, he came to work and spent the whole day eating potato chips (albeit not stolen), talking to his girlfriend on the phone, and doing his nails. Based on that, we determined that he would not work out in this job.

So, who wins? Because of the "same hirer, same firer" rule (scroll to "Sign No. 1"), my money is on BOA. I think this defense is very likely to apply, just because the guy was fired so soon after he was hired. On the other hand, if the EEOC can show that Supervisor A hired the employee but that Supervisor B fired him without considering accommodations, then the EEOC may prevail.

Goodyear: The Case of the Woozy Worker

According to the EEOC, the employee was cleared by two physicians to work as a tire builder even though she had menorrhagia. After about a month on the job, she disclosed her condition to her supervisor and was terminated at some point afterward because of the company's "unfounded belief that she was substantially limited in remaining conscious and working."

I expect Goodyear's defense to run something like this: We understand our obligations under the ADA, and we comply with them. But get real. First, being conscious is an essential function of the job. Duh. This lady worked in an area with heavy machinery and hot, molten rubber, for cryin' out loud. She reported her condition to her supervisor only after she was put on a final warning for leaving her work area without authorization. It is not safe for a person who has dizzy spells to work around heavy machinery and hot rubber, and because of our production needs, we cannot let employees leave the work area whenever they feel the need to. Even though two physicians cleared her to return to work, she obviously did not feel that she was safe in this work environment, and under the circumstances we had reason to believe that she was a direct threat to herself and to her co-workers. We did look for other vacant positions that she might perform, but the only vacancies we had were in the front office, and she has no data entry skills and only a tenth-grade education, so she did not qualify.

So, who wins? This is a tough one to call. Goodyear's anticipated defense sounds pretty strong, but I made up almost all of it, so it's also possible that the EEOC is right. I will call this one a "draw" until we get more details.

In related news, it was reported yesterday that the EEOC has been appropriated "only" $359 million for fiscal year 2012, a cut of $7.3 million from fiscal year 2011. So maybe the EEOC will be a little easier to deal with in the future.

But probably not.

You bet! You may, and it's strongly recommended unless you are comfortable with the opinion of the employee's doctor.

First, by sending the employee to the doctor, you can verify the need for the reasonable accommodation. (Honestly, this is not a big deal because challenging the existence of an employee's medical condition is a losing battle most of the time.)

Second, you can determine which types of reasonable accommodation are appropriate and have the best chance of working. This is a huge deal. Here are a few ways to make sure it works:

1. Make sure the doctor is an appropriate specialist. If the employee has a bad back, send her to an orthopedic surgeon, not an internist. If she has hypertension, send her to an internist, not an orthopedic surgeon. And so on and so forth.

2. Make sure the examination is "job related and consistent with business necessity." What does this mean? It means that if your employee is having, say, vision problems that are affecting his ability to do the job, you can't require him to get a complete physical or a colonoscopy. But you can require him to get an eye exam. And so on and so forth.

3. Make sure the doctor knows your workplace and knows what the employee's job entails. Written job descriptions are fine (although I think they're overrated). Even better are photos of the worksite, preferably with employees performing the job. Even better than photos are videos. Even better than videos -- if you think you will be using this doctor again, invite her to your workplace for an in-person tour. The more she knows your work environment and your jobs, the better her advice about reasonable accommodations will be.

4. Don't be chintzy. If you're going to require the employee to see your doctor, pay the bill. You have to, anyway. As the Equal Employment Opportunity Commission says (scroll down to Item 11), "If an employer requires an employee to go to a health care professional of the employer's choice, the employer must pay all costs associated with the visit(s)."

5. Be sure to provide the "safe harbor" disclaimer required by the Genetic Information Non-Discrimination Act. (Scroll down to the asterisk at the link for the full text of the disclaimer.)

6. Don't be worried that this violates the Family and Medical Leave Act, which requires that you usually accept the medical certification of your employee's health care provider. An examination to verify the need for reasonable accommodation under the Americans with Disabilities Act is not the same thing as an FMLA medical certification. Under the ADA, you have more flexibility to choose your own doctor. But the FMLA rule will still apply to certification of FMLA leave requests.

FAQ No. 1: What exactly is this "interactive process" that 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?

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

FAQ No. 6: We don't have a union. Do I still have to display that new NLRB poster?

FAQ No. 7: Should the "ugly" be protected from discrimination?

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

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.

It's not just London that is suffering from unrest these days -- there is reason to believe that American workplaces are far from heaven, too, even for those who are still fortunate enough to be employed.

The Wall Street Journal recently reported that approximately 75 percent of departing employees would not recommend their former employers to others looking for a job, almost a 100 percent increase over the "disgruntlement index" from 2008.

Meanwhile, the Equal Employment Opportunity Commission received more than 99 thousand charges in 2010, an increase of approximately 6,000 since the prior year. No telling what the numbers will be for 2011. My guess is "atrocious."

Want to guarantee you'll be sued, even if you're 100 percent in compliance with the law? Here are five employer "worst practices":

1. "They can have my unemployment when they pry it out of my cold, dead hand." Be sure to fight every unemployment claim filed by every terminated employee. OK, maybe you can make an exception for those who are caught up in a reduction in force, but that's it. It's good to make your ex-employee feel like he's backed into a corner. And if the fight is worth fighting at all, it should be a fight to the death. If you lose the unemployment case at the hearing stage, appeal it as far as you can go -- that will help your ex-employee learn to do better at his next job.

2. The EEOC is offering to mediate? So what? Don't give those bureaucrats the satisfaction! They'll just be pushing their agenda and letting this undeserving ex-employee tell you to your face why her feelings are hurt and take what little money she can weasel out of you. Sure, occasionally she'll settle for no money at all, and the charge will be dismissed without even a position statement, and you can get a full release of claims in exchange, but you're 100 percent in the right, so you don't need it. You're going to win! It's a matter of principle -- you'd rather pay your lawyers to defend you in court for the next two or three years than pay a nickel to this bimbo. 

3. If an employee can't perform the essential functions of the job* because of medical problems, then tough darts. The ADA says they're out of luck. Heck, even the ADAAA does. So what if the Obama EEOC has made disability discrimination enforcement a top priority? You're on rock-solid ground. Don't lift a finger to help your sick or injured employee qualify for short-term or long-term disability, or for Social Security disability -- that's his problem. It's not under your control, anyway.

*With or without a reasonable accommodation, of course. If the employee can perform the essential functions with a reasonable accommodation, then that would have to be offered.

4. Never let 'em "quit." If you're firing an employee, be sure that the record clearly reflects that she was fired. In disgrace, preferably. Whatever you do, don't offer her an opportunity to save face and "resign." A forced resignation won't be worth a darn in court anyway because they'll treat it as a "constructive discharge." Better to just let the chips fall where they may. If that means she'll have to spend at least six more months looking for another job (and turning to the EEOC in desperation before her charge-filing period runs out), so be it. What doesn't kill her will make her stronger on her next job.

5. Whatever you do, don't offer severance unless it's a RIF. Sure, you normally get a full release of claims when you offer severance, but why pay if you don't have to? You haven't done anything wrong -- your ex-employee has. Save your money. You can use it to pay your lawyers after he sues you. (You may need a little more.)

Finally, don't forget to let your boss know what you have done. He or she will admire your principles and will think the risk of litigation and legal fees were, like, totally worth it. I bet you'll get a promotion. 

Odds and ends from the employment law world this week:

Facebook rant about wages didn't create retaliation claim. Molly DiBianca of the Delaware Employment Law Blog reports on a decision from a federal court in Florida saying that a Facebook rant about an employer's alleged violations of the Fair Labor Standards Act overtime provisions was not "protected activity" that would trigger the FLSA's anti-retaliation protections. 

Cavalier about age discrimination? The EEOC reached a $1 million class settlement with Virginia's Cavalier Telephone, LLC, over allegations that the company used recruiters who made comments that showed age-based bias including that they did not want to hire anyone who was "over 40 and pudgy." The two class representatives also alleged that they were demoted and terminated after they complained. The EEOC is on a roll with this one and its recent $20 million settlement with Verizon, which resolved claims related to application of a no-fault attendance policy to employees with disabilities.

FMLA leave for death of a child? Sen. Jon Tester (D-Mont.) has introduced legislation that would expand the Family and Medical Leave Act to include job-protected leave for the death of an employee's son or daughter. The bill, which has no co-sponsors, is entitled the Parental Bereavement Act (S. 1358), and would apply to employers of 50 or more employees.

You go, girls! The federal Bureau of Labor Statistics reports that the wage gap between men and women narrowed slightly in 2010, with women now making 81.2 cents for every dollar that men earn. The "wage gap" statistics do not control for position held, years in workforce, educational level, or any other non-discriminatory reason that might explain the gap. 

How can this be? Jon Hyman of Ohio Employer's Law Blog reports that the EEOC has sued a nursing home called Menorah House for allegedly refusing to accommodate the need of an employee to observe the Sabbath. HUH? Granted, the employee is not Jewish but a Seventh-Day Adventist, but still!

Why couldn't the pony talk? It was a little horse. Eric B. Meyer of The Employer Handbook blog discusses whether a miniature horse can be a reasonable accommodation under the ADA. Inquiring minds want to know!

The U.S. Equal Employment Opportunity Commission recently held a meeting with "a battery of experts" on disparate treatment in hiring. According to the EEOC, hiring discrimination continues to run rampant.

Time for a grain of salt here: According to the EEOC's press release, most of the experts were from the EEOC, or were individuals who had been denied jobs and claimed they were discriminated against. Only one individual from an "employer" group was quoted (scroll way down for Rae Vann's comments). So I'm respectfully skeptical that there is an epidemic of hiring discrimination -- particularly so, since we know that the EEOC considers background and credit checks, and discrimination against the unemployed, to be illegal.

Plus, who's hiring these days, anyway?

All of my respectful skepticism aside, since this appears to be a big issue for the EEOC, it is a good idea for employers to ensure that their hiring practices will withstand scrutiny. Here are six suggestions that may help you stay out of trouble:

1. If you're a federal contractor, make sure your hiring processes comply with affirmative action requirements. These requirements are complex, and are about to become much more so if proposed regulations on recruitment of veterans go into effect. But make sure you are doing everything that your affirmative action consultants/attorneys tell you to do.

2. Even if you're not a federal contractor, periodically monitor your hiring statistics to ensure that applicants of a given race, national origin, age, or sex (etc.) are not being rejected disproportionately. If you see a statistical problem, then do a more in-depth analysis of these individuals' qualifications to ensure that you can explain the disparities.

3. Cast as wide a net as you can. Circumstances will vary, of course -- when you're searching for your new CEO, you don't want to consider every candidate in your county who has a worker's permit. But, generally, the less "cherry-picking," the better. Make sure that you recruit from appropriate sources to ensure that you have a balanced pool of candidates ... or, at least, that no one who is qualified will be able to say you didn't give them the chance. 

4. Make sure your hiring managers know which criteria are legal, and which are illegal. If you have not had training for your hiring managers in a while, it may be a good idea to conduct some. Managers need to be aware of the laws that apply to your company and the consequences for violation. They also need some practical advice on how to deal with difficult hiring situations, such as qualified candidates who may need disability-related or religious accommodations.

5. Watch out for "gray areas." In my experience, few employers discriminate on the grounds that are clearly prohibited by law, but there are a number of areas that are in a "gray zone" and may cause problems. Background and credit checks, and "unemployment discrimination," are some areas into which the EEOC is trying to expand the reach of the law, contending that these screening criteria disproportionately exclude racial and ethnic minorities. I'd also recommend being careful about rejecting candidates because they are overweight or smoke. Depending on the location of the employer, these individuals may be protected. Under the Americans with Disabilities Act Amendments Act, some overweight individuals may qualify as "individuals with disabilities" or individuals who are "regarded as" having disabilities. In addition, some local laws prohibit "appearance discrimination." Many state laws prohibit discrimination against individuals who smoke off-premises during non-working time. Discrimination based on sexual orientation violates an ever-growing number of state and local laws. Although there is currently no federal law specifically addressing it (not yet, anyway), some courts have considered sexual orientation discrimination to be a form of unlawful "sex stereotyping" that violates Title VII. 

6. Make sure your post-offer medical screening complies with the ADA and the Genetic Information Non-Discrimination Act. You should not be doing any medical screening pre-offer. (You aren't, are you?) If you screen individuals post-offer, you should make sure that the same screening is done for all offerees in that job classification, and that no offers are withdrawn unless you have thoroughly considered reasonable accommodation options and have determined that none are possible. Compliance with the GINA is relatively easy: just be sure that you provide the "safe harbor"* language on the medical forms that you give the offeree to take to the doctor. If you do the medical screening in-house, make sure that you are not asking the offeree for any type of "genetic information," which includes questions about family history.

This is far from an all-inclusive list, but if you monitor your performance in these areas and correct problems promptly, you will minimize your chances of being the EEOC's next hiring "test case."

*Here is the GINA "safe harbor" language:

NOTICE UNDER GENETIC INFORMATION NON-DISCRIMINATION ACT

The Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

A few weeks ago, I posted my thoughts about how the expanded definition of "disability" under the Americans with Disabilities Act Amendments Act will affect administration of the Family and Medical Leave Act. I promised to follow up with a post about the impact of the ADAAA on the Genetic Information Non-Discrimination Act "unless more pressing news intervene[d]."

As expected, I got distracted by Friday the 13th, and "common misconceptions." So, I'm a little behind schedule. 

As with my ADAAA/FMLA post, this is a work in progress, and I'd love to get feedback as to whether my ideas are right on target, so-so, or completely misguided.

The GINA, to grossly oversimplify, prohibits the disclosure, use, acquisition or attempted acquisition of "genetic information" as defined in the law, as well as discrimination because of "genetic information" or retaliation, etc.

The regulatory definition of “genetic information” includes not only the individual’s genetic testing information but also that of his or her family members as well as the “manifestation of a disease” in family members (e.g., “Has anyone in your family ever had cancer?”).

It also includes information about the individual’s or family member’s request for genetic services, genetic information of a fetus carried by the individual or family member, and genetic information of an embryo “legally held by the individual or family member using an assisted reproductive technology” (e.g., in vitro fertilization).

Thankfully, the statute and regulation specifically exclude sex and age from the definition of “genetic information.” The regulation also excludes race and ethnic characteristics if that information is “not derived from a genetic test.”

For the most part, it has been believed that the ADA and the GINA do not overlap, which is the reason that we supposedly needed the GINA. The ADA was intended to apply to existing disabling medical conditions. (But not really, because the ADA also protects individuals with "histories" of disabilities and "perceived" disabilities. But anyway.) The GINA, on the other hand, has more of an emphasis on information about an individual's predisposition to certain medical conditions.

For example . . . sometimes a "preventive" mastectomy is recommended for women who have a significant history of breast cancer in their families. The woman undergoing this surgery probably does not have a "disability," even within the liberal meaning of the ADAAA, because she does not actually have breast cancer or a history of breast cancer, and may not be regarded as having an "impairment" that is not "transitory and minor." However, if her employer terminated her, she might very well have a GINA discrimination claim. The theory would be that the employer terminated her because of her family history of breast cancer, and because family history is "genetic information," the employer violated the GINA. 

(Caution: The standard for a finding of "regarded as" disabled under the ADAAA -- requiring that the employer only perceive an impairment that is not transitory and minor -- may mean that the mastectomy surgery itself could give rise to an ADAAA "regarded as" claim.)

The ADA also protects individuals who have "associations" with individuals with disabilities. I see the possibility for a lot of overlap between the ADA and the GINA on "association" claims.

For instance . . . Mary is pregnant with a child who has been prenatally diagnosed with Down Syndrome, a genetic condition. First, to avoid any liability for sex/pregnancy discrimination, the employer may not take any action against her based on whether she decides to go through with the pregnancy. But, let's say the employer strongly "encourages" Mary to have an abortion and fires her when she refuses. Clearly, Mary would have a valid pregnancy discrimination claim under Title VII. Would she have an ADA claim? She doesn't have a disability, but if I were a plaintiff's lawyer, I would include an ADA "association" claim. In other words, I'd allege that Mary's employment was terminated because of her association with an individual with a disability (i.e., her baby). Would she have a GINA claim, as well? I would say so -- this seems to be exactly the kind of situation that the GINA was enacted to address. The baby's condition would be "genetic information" about Mary.

And how about this classic ADA-association scenario? Joe's son has a congenital heart defect, and the company refuses to hire Joe because it is afraid that Joe's son will make the company's health insurance premiums skyrocket. Now, Joe would have an ADA "association" claim and a GINA discrimination claim, too.

On the other hand, if Joe's son is disabled in an automobile accident, and the company refuses to hire Joe because it's afraid Joe's son will make the company's health insurance premiums skyrocket, Joe would have an ADA "association" claim but (if I'm interpreting the GINA correctly) not a GINA claim. In this example, the son does not have a congenital health condition that could be considered "genetic."

So, these are the key areas where I see ADAAA/GINA overlap:

*Associational claims under the ADA and GINA discrimination based on family history.

*Discrimination claims based on an individual's "history" of a disability or actual disability where the condition is a congenital one.

*Discrimination claims based on an individual's being "regarded as" having a disability based on preventive surgery, genetic testing, association with a family member with a congenital disability.

Employment-related medical examinations, the ADA, and the GINA. The GINA will also overlap with some of the "old ADA" provisions, particularly concerning medical examinations. As most readers know, the ADA allows post-offer medical examinations if the examinations are required of all offerees in the job category. Employers are also allowed to send current employees for medical examinations as long as the examinations are "job-related and consistent with business necessity."

The ADAAA has not changed these rules. But the GINA has. Now, the employer must provide the GINA "safe harbor" language to the health care provider when sending an employee for any medical examination, even when the medical examination is legal. The "safe harbor" language is designed to prevent the health care provider from asking for family history. Even if the health care provider slips up and asks for it, the employer will be protected from liability if it provided the safe harbor language to the health care provider.

Voluntary wellness programs. The ADA also allows employers to get medical information from employees as part of a voluntary wellness program. The GINA allows questions related to the genetic background of employees in connection with voluntary wellness programs if the employer first gets a written authorization from the employee that includes certain specific content.

Confidentiality of medical information. Finally, the ADA is responsible for the well-known rule that requires employers to keep employee medical information confidential and separate from personnel files. Some of this medical information may also be covered by the GINA and, one would think, has already been purged from personnel files. But if it hasn't, the EEOC has said that it is not necessary for the employer to go back through old personnel files and remove GINA-protected information . . . as long as the information was put in the files before the effective date of the law (November 21, 2009). Of course, even the old genetic information cannot be used or disclosed, and genetic information cannot be put in a personnel file after November 21, 2009.

Next up: the interaction of the ADAAA with the HIPAA privacy rule. Does the fun ever start?

Plaintiff's lawyer Donna Ballman and The Evil HR Lady have had good posts recently on common employee misconceptions about employment law, including the "right" to see what is in one's personnel file and the "right" to take a break.*

*Depending on where the employee lives, he may have these rights, but in many states he does not. And the federal Fair Labor Standards Act does not require breaks. 

What's good for the goose is good for the gander. So, what are the most common misconceptions about the law by employers? Here are five that I see frequently:

No. 1 - "This is a right-to-work state. We can fire you at any time, and for a good reason, a bad reason or no reason at all." This is wrong on so many levels. First, many states -- particularly in the North and Northeast -- are not right-to-work states. But even assuming the speaker really is in a right-to-work state, he has misunderstood what it means. A right-to-work state is one in which employees cannot be forced to join a union or pay union dues as a condition of employment. The speaker is confusing "right-to-work" with "employment at will," which brings me to my next misconception . . .

No. 2 - "This is an employment-at-will state. We can fire you at any time, and for a good reason, a bad reason or no reason at all." Oh, yeah? I dare ya to try firing someone for a bad reason or no reason, even in an employment-at-will state. I've blogged about this before. Even if your state is technically employment-at-will  (and not all are), you still can't terminate an employee for an illegal reason. And there are an awful lot of illegal reasons -- so many, in fact, that they swallow the rule.

Allow me to use my relatively employer-friendly home state of North Carolina as an example. Even though we are at-will (allegedly), many grounds for termination are unlawful, including (1) because the employee refused to break the law, (2) because the employee filed or is expected to file a workers' compensation claim, (3) because of the employee's race, color, national origin, sex, age, or disability, (4) because the ground for termination is found to have violated a "public policy" of the State, (5) because the employee filed a state workplace safety complaint, (6) because the employee exercised her rights to join or not join a union (see #1, above!), (6) because the employee uses lawful products during non-working hours, and on and on and on, yada yada yada. And this doesn't even count all the federal laws that also protect employees in all 50 states.

And you may say, "But I'm not firing the employee for any of these illegal reasons! I just don't like her hairdo!" Technically and superficially, that would be a "legal" reason to terminate an employee in an at-will state . . . if she's foolish enough to agree that this was the reason. But you can be sure that the employee fired because of her bad hairdo will claim you really fired her because she was a woman (illegal), because of her race or national origin (illegal), or because she testified truthfully in her best friend's unemployment hearing (illegal). Which means, at the very least, an expensive lawsuit for you and, at worst, a jury verdict in her favor because who would ever believe that an employer would get rid of a good employee just because she had bad hair?

3. "Exempt = salaried." This one is very common. Employers frequently believe that they have to pay overtime only to "hourly" employees and that everyone who is "salaried" is FLSA-exempt. Not true, and it can be very expensive to find out you've been doing it wrong, especially if you find that out during a collective action brought by all of your non-exempt "salaried" employees. Under the FLSA, being salaried is usually a necessary condition for exemption, but not a sufficient one. The employee must also satisfy the "duties" requirements for the executive, administrative, or professional exemptions. (There are exemptions for outside salespersons and certain computer employees that do not require payment of a salary.) This is why clerical employees, for example, fill out time sheets and (should) get overtime if they work more than 40 hours in a workweek.

4. "Just treat everyone the same, and you'll never go wrong." This was great advice in 1970, when "non-discrimination" was a new-fangled idea, but not any more. Generally, an employer does want to be fair and be as consistent as possible. However, there are some major exceptions that can really cause problems if the employer is not aware of them. First, there is the Americans with Disabilities Act, which I have discussed at length elsewhere and which requires reasonable accommodation in appropriate cases. "Reasonable accommodation" by definition requires that you treat one employee differently from other employees. Covered federal contractors face similar requirements under the Rehabilitation Act and the Vietnam-Era Veterans Rehabilitation and Adjustment Act and its amendments. In addition to these laws, Title VII requires that employers make reasonable accommodations to the religious beliefs and practices of employees. In this context, as well, "accommodation" means "differential treatment."

As Ralph Waldo Emerson said, "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."

5. "Women make only 59 cents for every dollar that men make, and it's because sex discrimination is rampant in the workplace even though it's been illegal for almost 50 years." This one drives me crazy, so I had to save it for last. First, ladies, we are moving up in the world. We are now making 77 cents for every dollar that men earn. So there! More importantly, even the 77-cent statistic is dishonest because it measures only the average pay of all men versus the average pay of all women. Some little details not taken into account include, oh, I don't know -- job held, education, time in workplace, full-time versus part-time . . .. 

Seriously, there is a gender-based pay gap, but it is not at all clear that discrimination is the reason. A more likely explanation is the difference in men's and women's lifestyle choices.

Statistically speaking, women are more likely to start their paid-work lives later and to take more breaks, usually as they bear and rear children. (We break for children.) For family reasons, women are also more likely to work in "clean, safe" jobs with regular hours and minimal travel, and to seek part-time work schedules. The physically demanding, dangerous work with rotten hours or extensive travel is usually performed by men. (Please note that I am speaking statistically and realize that there are exceptions to these rules.)

I have also seen that our bad economy has resulted in more male than female unemployment. (Scroll down to second-to-last paragraph.) So it may be that men are really the ones getting the raw deal, not women. Or, perhaps we can just agree that things are tough all over, and for all of us.

I'd love to hear from you if you have more employer misconceptions to add. And, to all of you readers who are moms, Happy Mother's Day. I hope that you think your kids were well worth the pay gap that "they" caused. Mine were!

As most people in the Human Resources and employment-law worlds are aware, the U.S. Equal Employment Opportunity Commission recently issued its final rule interpreting the Americans with Disabilities Act Amendments Act.

The ADAAA, which took effect in January 2009, was enacted toward the end of the administration of George W. Bush, with the support of disability rights advocates as well as the U.S. Chamber of Commerce and the Society for Human Resources Management (both of whom were trying to head off a version that would have been worse for employers). The ADAAA dramatically expands the population that is considered "disabled" within the meaning of the ADA but does not change the ADA's provisions on, for example, reasonable accommodation, medical examinations, or confidentiality.

There has been a lot of commentary about the new regulations, but here are some points that I have not seen anywhere else:

1. The 40-or-so pages of dense preamble and regulations, and the EEOC's "Interpretive Guidance," can be summarized in one sentence, as follows: It is now unlawful to discriminate, not just against individuals with "disabilities," but against anyone because of a medical condition, whether actual, past, or perceived. (Please note that "medical condition" also includes mental/psychiatric conditions and learning disabilities.) The only exceptions might be, for example, a person suffering from the common cold or the flu, or someone who wears eyeglasses or contact lenses. But not necessarily. The new definition of "disabilities" in the ADAAA is as loosey-goosey as the definition of "serious health condition" in the Family and Medical Leave Act. 

2. Individuals who are "regarded as" being only impaired are protected. The only perceived "impairments" that don't count are those that are both transitory (duration of less than six months) and minor. Because it's going to be so easy to qualify, the EEOC is actively encouraging individuals to always sue under the "regarded as" prong as long as they aren't challenging an employer's failure to provide a reasonable accommodation. (For obvious reasons, reasonable accommodations do not have to be provided to individuals who are only "regarded as" being impaired, so an individual seeking a reasonable accommodation would have to establish either an actual "disability" or a record of a "disability.")

3. Thanks (but no thanks) to this law, I expect to see some class action lawsuits alleging ADAAA violations in connection with post-offer medical examinations and terminations at the end of extended medical leaves of absence. Under the prior version of the ADA, these cases were normally unsuccessful as class actions because an individualized analysis was required to determine who could be a member of the class (that is, who was "disabled"). But now that the determination of who is "disabled" is virtually automatic, disability discrimination cases will be more susceptible of class treatment.

4. Most ADA case law on who is "disabled" is no good any longer. The ADAAA explicitly overruled some excellent Supreme Court decisions, including Sutton v. United Air Lines (1999) and Williams v. Toyota Manufacturing of Kentucky (2002). However, our court system is slow, and so we are still seeing ADA decisions that take a restrictive view of who is "disabled." This is nothing to be excited about, unfortunately. Be sure to read the fine print: If the facts alleged in the case occurred before January 1, 2009, then the court is applying the old ADA, which really was a pretty good and reasonable law. (On the other hand, if you see a pro-employer decision based on facts that occurred after January 1, 2009, then you may have reason to open a bottle of champagne.)

So, what should an employer do to comply with the ADAAA?

*Always assume that everyone has an ADAAA "disability." You will be right 99.9 percent of the time, and the rest of the time you'll be erring on the right side.

*Brush up, if you need to, on your legal obligations concerning reasonable accommodations. You will have to consider reasonable accommodations in many more cases than you did in the past. 

*If you think a "medical condition" disqualifies a person from performing the job, go through the full-blown ADA/reasonable accommodation analysis. If you think you will be unable to accommodate, consult with counsel before making any irreversible decisions.

*If you require post-offer medical screening, review what you are doing and make sure that your medical department (or outside physician) is not automatically rejecting everyone who has certain conditions. All medical rejection decisions should be considered "preliminary" until they have been reviewed and approved by someone in Human Resources and/or a lawyer. (This may require the offeree to sign a HIPAA authorization that will allow the medical department to share relevant information with HR/Legal.)

*Review your medical leave/termination policies and practices, and be especially on the lookout for any provisions that seem to call for "automatic" termination without an individualized assessment or consideration of reasonable accommodation options.

*Make sure your "paws" know the laws. Now that we have the potential for cat's paw liability, be sure that your front-line supervisors and other managers know at least that the ADA has been amended and that it will cover significantly more people than before.