Employment and Labor Insider - Legalese Is Not Spoken Here

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Photos from Wikimedia Commons, public domain.)

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!

How many readers knew it was illegal to discriminate against white people . . . or guys?

The reason I ask is that we had a decision this week from the U.S. Court of Appeals for the Eighth Circuit, which hears appeals from federal courts in the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, and the Dakotas. A majority-African-American school board was found by a jury to have blatantly discriminated against the plaintiff, who was one of only two white administrative employees in the school district. (The plaintiff and the other white administrative employee, the superintendent, were demoted. The plaintiff claimed that her demotion was a "constructive discharge*," and the Eighth Circuit agreed.)

*A "constructive discharge" is the legal equivalent of out-and-out firing someone. Under federal law, if the employer deliberately makes working conditions so intolerable that a reasonable person in the employee's shoes would feel compelled to resign, then you have a constructive discharge. 

One of the issues on appeal was whether the plaintiff was entitled to punitive damages. Generally, a plaintiff can't get punitive damages (intended more to teach the wrongdoer a lesson than to compensate the plaintiff) unless the employer showed "reckless indifference" to her rights. A finding of discrimination isn't by itself enough to establish "reckless indifference" for punitive damages purposes.

Or, is it?

The Eighth Circuit held that when an employer "blatantly" discriminates based on race, "reckless indifference" can be presumed because everybody knows or oughta know by now that race discrimination is illegal. Another federal appeals court, the Third Circuit (Delaware, New Jersey,  Pennsylvania, and the Virgin Islands) has said the same. The Eighth Circuit remanded the case to the trial court so that the trial court could hear the school board's evidence that it had no idea that race discrimination was illegal.

So, back to my original question.

How many of you knew that discrimination against Caucasians, or against men, was illegal? (This is called "reverse discrimination.")

*Do you "set aside" certain positions in your company for women and minorities, and fail to give due consideration to qualified white, male candidates for those positions?

*If you have two equally qualified candidates for a position, are you automatically more favorably disposed toward the minority/female candidate?

*Do you let "the word get out" that you prefer a woman or a minority candidate to fill a position?

*When doing a reduction in force, do you take extra-special care to find another spot in the new organization for a female or minority employee but not for a white/male employee?

In my experience these practices are pretty common, and my perception has been that the employers have no idea that there is anything wrong with what they're doing. As they see it, they're just fulfilling their affirmative action obligations, like the Town of New Haven, Connecticut thought when it threw out firefighter promotion test results because minority candidates didn't score as well as white candidates. Live and learn.

The law in this area could certainly be clearer. Federal contractors are required to establish hiring "goals," and there is no doubt that a contractor will get a lot less grief from the Office of Federal Contract Compliance Programs if it goes out of its way to hire, retain, and promote women and minorities. If an employer is under a consent decree because of past "regular" discrimination (that is, discrimination against women or minorities) then it may be legally required to set aside positions or take other actions that "discriminate" against whites and males.

But otherwise, employers are not supposed to discriminate. Period. Not against women. Not against men. Not against minorities. Not against "majorities."

White guys of Northern European descent need love, too.

But it will be interesting to see whether the school board claims that it had no earthly idea that it was against the law to discriminate against "majorities." The law in this area is so confusing, they just might prevail on that point.

Our friend Judy Greenwald from Business Insurance magazine reported this week that the number of EEOC charges filed in fiscal year 2011 (which ended September 30, 2011) was relatively flat, with the exception of one big category . . . retaliation.

Retaliation is essentially taking action against an employee because the employee engaged in some type of activity that is protected by law. The law breaks it down into three parts, each of which the employee has to prove:

1-The employee engages in some type of legally protected activity (more on this below).

2-"Adverse employment action" is taken by the company.

3-There is a "causal nexus" (that's "connection" to you and me) between the protected activity and the adverse action. In other words, there has to be some reason to believe that the adverse action was taken because of the protected activity.

Almost all federal and state employment laws have anti-retaliation provisions. In the labor relations arena, the "non-discrimination" provisions in the National Labor Relations Act are essentially anti-retaliation provisions. A wrongful discharge lawsuit where an employee claims he was terminated for refusing to break the law or for complying with the law is also essentially a retaliation claim.

"Protected activity" can include such things as filing a charge or lawsuit, providing truthful testimony or other help to someone else in connection with a charge or lawsuit, or making an internal complaint about unlawful practices. These activities may be protected even if the employee is wrong -- as long as the employee had a good-faith belief that the employer's conduct was illegal. (Sometimes the employee's belief must also be objectively reasonable to be protected -- check the relevant law and the interpretations from courts in your jurisdiction.)

However, the employer may not be liable if the employee expresses herself in an inappropriate way -- for example, by spray painting on your corporate headquarters building, "MEGACORP DISCRIMINATES AGAINST WOMEN!!!!" (Thank heaven for small favors, huh?)

Now that you have that background, what I'd really like to talk about today is how an employee proves retaliation and how an employer disproves it. With a hat tip to Jeff Foxworthy (you knew there was a reason for that photo of a trailer!),

"YOU MIGHT BE LIABLE FOR RETALIATION IF . . ."

1-You took action against the employee a short time after you found out about the protected activity. Yes, there might be an innocent explanation, and you'll get a chance to provide it, but it looks very suspicious if the adverse action occurred, just as an example, the day after you received your copy of Joe's race discrimination charge in the mail. If the time interval was less than six months and you don't have a good explanation, you might be liable for retaliation.

2-That gun is smokin'! You, or another member of management who directly or indirectly participated in the decision made a statement indicating a retaliatory intent. You know, something like, "I can't believe that little dickens filed an EEOC charge against us! I'll fix her wagon!" If one of the key individuals made a "smoking gun" statement like this before the adverse action was taken, you might be liable for retaliation.

3-You have no "interventions." In other words, there is no intervening event to "break" what we lawyers like to call "the chain of causation." Mary had outstanding performance reviews before she complained that Mr. Romeo was sexually harassing her. She was fired a month later. There was nothing significant that occurred between her harassment complaint and her termination that would "explain away" the suspicious timing of the termination . . . for example, that Mary had botched a million-dollar deal after she complained, or got caught with her hand in the petty cash drawer, or was part of a department that was already scheduled for elimination. If there is a relatively short time between the protected activity and the adverse action, and there is no significant intervening event, you might be liable for retaliation.

4-A foolish consistency is not the hobgoblin of little minds. (Except when it is.) Employers, if you have to take action against an employee who engaged in protected activity, examine your conscience: "Would I be doing the same thing if Lemuel had not complained on behalf of himself and his co-workers about having to work too much overtime?" Oh, really? Are you sure? If you answer that question, "no" or "maybe," then don't take the action. If you answer it "yes," then you're still not done. Now ask yourself this: "Even if I am satisifed that I'm treating Lemuel no differently from any other employee, will I be able to prove it in court?" If you can't convince a third party that you treated Lemuel the same way you would have treated any other employee with similar issues, you might be liable for retaliation.

5-A foolish consistency is the hobgoblin of little minds. (Except when it isn't.) Do you have other employees who've filed charges or lawsuits against you while they were still employed? Or workers' compensation claims? Or who made internal complaints about discrimination, sexual harassment, working conditions, safety, or what have you? Did bad things happen to them? This could show that you have a pattern of retaliating against employees who engage in protected activity. If so, a judge or jury is likely to find that you probably treated this particular employee the same way, and you might be liable for retaliation. 

We aim to be "fair and balanced," so here is the other side.

YOU MIGHT NOT BE LIABLE FOR RETALIATION IF . . .

1-You are blissfully ignorant. You can't retaliate for something you didn't know about. If you fired Velveeta before you knew that she had been involved in union organizing, then you should be ok. In fact, if you can prove that you made the decision to fire Velveeta, and then found out she was involved in union organizing, and then fired her per the original decision, you'll probably win because the decision had already been made while you were knew nothing of her protected activity. This, by the way, is one of the best reasons to document decisions to terminate employees, even if the termination isn't actually carried out until later.

If the decision was made before you knew about the protected activity, you might not be liable for retaliation.

2-It's been a long time coming. If at least six months has elapsed between the time you found out about Todd's workers' comp claim and the day that you decided to fire Todd, most courts will give you the benefit of the doubt that the decision was not related to his protected activity. Todd can overcome that presumption by presenting evidence that you were still upset with him about his workers' comp claim even after all that time, but assuming he doesn't have any, you might not be liable for retaliation.

3-You have an "intervention." You found out last week that Banshie had filed an EEOC charge against you. Yesterday, you caught her (on tape!) slapping her supervisor across the face for no good reason whatsoever. YES, you can fire Banshie for slapping her boss, even though she just recently filed a charge that you know about. This is what we call a significant intervening event that "breaks" the chain of causation. If a significant intervening event occurred that provided the ground for the adverse action, then you might not be liable for retaliation.

4-A foolish consistency is not the hobgoblin of little minds. (Except when it is.) Yes, you terminated Dishwater only three weeks after finding out about his testimony against the company in Carol's discrimination lawsuit, but he had exceeded the maximum number of absences (non-FMLA/ADA, of course) under your policy, and you checked before you did it and made sure that every other employee whose attendance reached the same level had also been terminated. You also found that Dishwater had received all of the progressive warnings to which he was entitled under your policy. If you treat the "protected" employee the same way you would have treated anyone else with comparable history, then you might not be liable for retaliation.

5-A foolish consistency is the hobgoblin of little minds. (Except when it isn't.) Yes, you fired Chloreen for poor performance a couple of months after you found out that she'd filed a charge against you. But you have 50 other employees who have filed charges, lawsuits, or workers' comp claims, or who have made internal harassment complaints, etc., etc., who are all still working for you and are in good standing. If you have a long list of employees who are rocking along at work without problems even though they're "protected," then you might not be liable for retaliation.

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!

A cornucopia of random employment law issues for your long weekend.

Lessons for employers from the Natalie Wood investigation. (OK, I admit this is a shameless tie-in designed to get you to read a legal blog over a holiday weekend.) But the reopening of the Natalie Wood drowning investigation after 30 years does contain a good lesson for employers -- to wit, that no matter how much time has passed, it's a good idea to go ahead and conduct whatever investigation is warranted, and even to re-investigate if appropriate. For example, suppose you learn about some workplace harassment but the accuser or the alleged "perp" is no longer with the company. Frequently the employer's reaction is, "What's the point? S/he's not even here any more." Contrary to this gut reaction, it is always a good idea to investigate allegations of wrongdoing even if one or both of the parties are no longer employed, and even if a lot of time has passed. For one thing, there may be other victims who are still working for you. It's also a good idea to reopen an investigation if you find that the original one was sloppy or otherwise flawed in some important way. At the very least, investigating the allegations whenever you learn of them will show your employees, plaintiff's lawyers, the EEOC, and the courts that you take allegations of misconduct seriously.

Dirty old men don't get love. The U.S. Court of Appeals for the Third Circuit (Delaware, New Jersey, and Pennsylvania) has affirmed summary judgment for a steel company that fired some older workers for sending pornographic emails through the company system. Even though the workers alleged that management had made some age-related comments, the court found that they were "stray remarks" that were not tied to the termination decisions. Although some younger workers had not been terminated for misuse of the company email system, the court found that their circumstances were different -- for the most part, they had been passive recipients of dirty emails but didn't send them to others. In the case of one younger worker, he sent a single dirty email from his home computer. By contrast, the plaintiffs were sending each other dirty emails using the company system on a daily basis, the court said.

Favoritism ain't necessarily discrimination. At least, not unlawful discrimination. We all have a tendency to think that any bias or unfairness in employment must be against the law. But as a recent case teaches, not all "bias" is illegal. For example, if the CEO hires his incompetent nephew to be your supervisor even though you are smarter, handsomer, and a much nicer guy than he is, the CEO has almost certainly acted legally. There is no law against that type of bias.

Have you hugged your evangelical Christian today? There were two religious discrimination cases in the news this week, both involving evangelical Christians. The cases are a good lesson that the religious discrimination and accommodation laws apply to all -- even those who are considered by some to be part of the "majority."

Couldn't they have waited until day 667? In one case, an employee has alleged that he was terminated for refusing to wear a sticker touting the employer's 666 days without a lost-time accident. The employee considered the number "666" to be the "mark of the beast" described in the book of Revelations in the New Testament of the Bible and that he would be faced with eternal damnation if he wore it. (If that's not a sincerely held religious belief worthy of a reasonable accommodation, then I don't know what is.) Nonetheless, the employer -- an overzealous safety manager? -- fired him for refusing to wear it. Right now, all we have is the employee's lawsuit, and we have not heard the employer's side of the story. But if it's true, the employer has clearly violated its religious accommodation obligations under Title VII.

"Evolution mama, don't you make a monkey out of me." (Yes, that is a real song, and you can download an MP3 of it for only 69 cents!) Another evangelical Christian, an IT guy for NASA, is going to be allowed to go to trial on his claim that he was disciplined and demoted because he advocated the "intelligent design" theory of the origins of the universe. "Intelligent design" holds that the universe came about, not at random, but through an "intelligent force." The plaintiff is claiming that NASA took action against him because he discussed his views with his co-workers, and a California judge found that he had enough evidence to go to trial on his religious discrimination claims under the state Fair Employment and Housing Act.

Have a safe and happy Thanksgiving, everyone!

As they said at Bunker Hill, "Don't fire until you see the whites of their eyes!"

Last week, I wrote about early motions to dismiss employment lawsuits under Rule 12(b)(6) and questioned whether they were always the best strategy for the employer. Most of last week's post simply described the differences between a motion to dismiss, a motion for summary judgment, and a trial, as background for the benefit of our readers who are not lawyers.

As noted in a comment by Philip Miles of Lawffice Space (great blog, by the way, and well worth a visit), there is no question that a judicious motion to dismiss an employment lawsuit may be a good idea. If it works, of course, it is by far the least expensive option because it allows you to end the lawsuit at the earliest possible point. (Big "if," unfortunately, but we can dream, can't we?)

I'd give a motion to dismiss serious consideration in these circumstances:

*As Philip points out, even if you can't get the entire lawsuit thrown out, you can narrow the case down to the "real" issues by getting the "trash" claims dismissed. Plaintiffs often throw the kitchen sink at the defendant, and a "surgical" motion to dismiss will allow everyone to focus on the part of the lawsuit that is serious.

*Sometimes it will be crystal clear from the allegations of the complaint that the claim is baloney ("I was fired because I'm a woman. I got caught stealing, but males who didn't steal were not terminated") or is outside the statute of limitations ("Twenty years ago, the company fired me because of my race"). Why don't we get lawsuits like this more often?

*Sometimes it's a good strategy for pragmatic reasons -- maybe your case has some problems (for example, hostile witnesses, lack of documentation, or poor handling of the situation that led to the lawsuit), and it's worth trying an early motion to dismiss to avoid all that.

*Or maybe you just want the plaintiff's lawyer to know that your company isn't an easy mark for lawsuits and that she'll have to work for her money. You need to be careful about this motive, though -- you may be opening yourself up to sanctions if you don't have a strong legal ground for the motion.

In short, I'm not 100% opposed to a motion to dismiss, and I have been known to file them occasionally myself. That having been said, I think defense lawyers frequently overuse them, and I'd like to give you five reasons why an early motion to dismiss is not always in your best interests as an employer.

Reason No. 1 - You may "make bad law." A real-life example will illustrate what I mean. My state of North Carolina, like many other states, recognizes a claim for "public policy" wrongful discharge but takes a fairly limited view of what a protected "public policy" is. Among other reasons, you can't fire an employee for refusing to commit perjury, or for a discriminatory/retaliatory reason, or for filing a workers' compensation claim, or a truck driver for refusing to falsify his driving logs.

In a real lawsuit decided last fall, a landscape architect claimed that his ex-employer fired him because he made complaints about the employer's lack of compliance with state laws requiring that projects be certified by a real landscape architect. The architect/plaintiff claimed that his ex-employer's refusal to comply created public safety issues, as well as cost overruns and delays on multiple projects, and he gave specifics. The employer filed a motion to dismiss on the ground that North Carolina didn't recognize a "public policy" discharge claim on these grounds.

Well, guess what? It does now. A federal district court found that our state courts would indeed recognize such a claim. (Link is to the magistrate's recommendation, but the judge adopted the recommendation.) Of course, I have no idea what evidence the employer would have been able to present in its own behalf because a motion to dismiss is filed before the development of evidence. Maybe this motion to dismiss was the best in a set of bad options. But there is also no question that we now have a new cause of action for wrongful discharge that we didn't used to have . . . all because of this motion to dismiss.

Reason No. 2 - Your motion may "coach" the plaintiff about how to say it better next time. Let's say the plaintiff, who is African-American, alleges, "The company discriminated against me because of my color and national origin in violation of Title VII of the Civil Rights Act of 1964." Let's say there is no factual allegation that her "color" played any role in her termination, and because she's American, she doesn't have a national origin claim. Should you file a motion to dismiss? I wouldn't, because your motion will teach her (or her attorney) that she needs to use the buzzword "race" instead of "color" or "national origin" in the future.

Reason No. 3 - Even if your motion is granted, the judge will probably give the plaintiff "leave to amend." Sad but true. As I said last week, if you wait and win on a motion for summary judgment, the case is over subject only to the plaintiff's right of appeal. But if you win on a motion to dismiss, chances are very good that the judge will simply let the plaintiff rewrite his complaint and file it again. (Also, your motion will have taught him how to make it "stick" this time. See Reason No. 2.)

Reason No. 4 - An overly aggressive motion to dismiss will tick off the judge. You certainly don't want the judge to be mad at you, and in my experience, judges can't stand a bully. They especially don't like to see big law firms hassling small practitioners, or -- heaven forbid -- plaintiffs who are representing themselves. If you have a really well-founded motion to dismiss, go for it, but if it's borderline and the other side is a "small lawyer" or pro se plaintiff, I'd back off. Instead, be nice, and wait for summary judgment. 

Reason No. 5 - It's often an exercise in futility and a waste of money. (See all of the above.) PS - Judges don't like wasting time on unnecessary motions any more than they like bullies.

Here are some specific instances in which I would not recommend filing an early motion to dismiss an employment lawsuit:

*Where the plaintiff did a poor job articulating her allegations, but everyone knows what she meant and she has a valid claim.

*Where the plaintiff is pro se. Period. (OK, maybe if the lawsuit is totally incoherent, but otherwise . . .) Dude, be nice. Let him have his day in court.

*Where you have a "home run" case, but you need a little bit of evidence to get wood on the ball. If you need evidence, that's summary judgment, not a motion to dismiss.

*Where you can get one or two claims dismissed, but many more claims will have to remain in the lawsuit. This is a matter of economics -- if the valid claims significantly outnumber the "trash" claims, it's probably going to be easier and cheaper for the client to dispose of everything on summary judgment.

*Where you only "probably" have a statute of limitations defense. For example, the federal anti-discrimination laws require that you file suit no later than 90 days after receipt of the EEOC's dismissal of the charge. Let's say the lawsuit is filed on day 93 after the date of dismissal. Don't waste your time with a motion to dismiss the federal claims on grounds of untimeliness - the plaintiff will simply respond with the claim that she didn't receive the notice until day 95, and you won't be able to disprove it. The time runs from date of receipt, not date of issuance. (See also Reason No. 2, above, about educating your opponent.)

Wish I'd thought of that - On a completely unrelated note, blogger Jon Hyman had a fantastic post this week about an Employer's Bill of Rights. Please read it - you won't be sorry!

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.

OK, I admit it. This was not a "frequently asked question" until recently, after the New York Times ran a piece by a University of Texas economist who argued that the anti-discrimination laws should protect ugly people.

Since that time, this ridiculous highly creative suggestion has been blogged and tweeted about everywhere, so I would say that it now qualifies as a true "FAQ." In any event, I can't resist the opportunity to blog about it.

There are at least three reasons why this is one of the worst ideas ever. (Which isn't to say that it won't become the law someday):

1) It confuses cause and effect. "Studies have shown" that good-looking people make more money than homely people. I have no doubt that this is statistically true. But are these homely folks making less money because they're homely, or are they homely because they are making less money? I suspect (statistically speaking, of course) that the latter is more often the case. If you grew up in an affluent background, you are much more likely to have eaten nutritious meals, had regular fresh air and exercise, been able to afford to go to the doctor and the dentist for check-ups, worn braces to straighten your teeth, taken prescriptions for your teenage acne, and all of those other little things that help create an attractive adult (or minimize unattractiveness). Of course, that affluent, well-nourished background also means you are more likely to get good grades in school, go to a good college, continue your education beyond college, ace your SATs/GREs/LSATs/MCATs, and have connections that will allow you to get a good job or run a successful business. Not to mention that you will also be able to afford nice-looking clothes and good haircuts.

I admit that this is not fair, but if I'm correct, it shows that any "appearance gap" is probably a result of factors other than employment discrimination. And if so, then why burden employers with yet another anti-discrimination requirement, and one that is so nebulous and subjective?

2) Even if "ugly discrimination" were the cause of the "appearance gap," how in the world would an anti-ugly-discrimination law be enforced? Yes, maybe some people look so bad that everyone can agree that they're ugly. (Except their mothers.) But how about all those people who aren't ugly but aren't beautiful? Maybe they don't have enough hair. Maybe they're overweight, or skinny. Maybe they're the wrong height. Maybe they wear thick glasses. How do we draw the line between the less-than-ideal and the truly ugly? And, anyway, don't the less-than-ideal face "discrimination" all the time? And how do we distinguish between "ugly discrimination" and "making a less-than-favorable impression in a job interview"?

(I realize that this is so obvious it doesn't even need saying. Blame the professor and the NYT.)

3) We don't even need such a law. The ADA already protects individuals who are "regarded as" having disabilities, and the other laws protect against discrimination based on racial/ethnic/age-based/other appearance characteristics. A classic example of "regarded as" discrimination under the Americans with Disabilities Act that was given by the EEOC way back in the early 1990's involved a person who had a disfiguring scar on his face. Although he was not disabled in any respect, the EEOC said he could have a "regarded as" claim under the ADA if people treated him as if he were disabled.

In addition to the ADA, the other anti-discrimination laws would protect an individual from discrimination based on standards of attractiveness based on race, sex, nationality, age (this is a big one) . . . and even religion, if it applies (for example, in the case of a head scarf, facial hair, or a tattoo that was a requirement of one's religion).

The current standards set the bar on "ugly discrimination" high enough that it's possible to enforce it with some degree of consistency and objectivity. Anything lower is asking for trouble.

I cannot improve on fellow blogger Jon Hyman's take on it:

"In all seriousness, Professor [name deleted - I don't want to encourage him!], you got your name in the Sunday Times. Now go back to Austin and never let this silliness see the light of day again. Thank you."

OK. Rant over. Thanks for letting me share.

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?

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 8 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. 4: Should I offer harassment training to rank-and-file employees? Isn't that just asking for trouble?

The answers are Yes, please!, and No, you are not asking for trouble. Many employers do not require their non-management employees to undergo harassment training. Sometimes the expense is a deterrent. Sometimes employers are afraid that harassment training will just give non-management employees "ideas." But it's a good idea to offer it so that

*You can be sure your employees will know how to behave at work.

*You can be sure your employees will know what to do if they feel that they, or someone they work with, are being victimized.

*Inappropriate behavior will be reported (and, it is hoped, remedied) before the situation is too far gone.

*You will look good to the EEOC, the plaintiff's bar, and the courts for having been such a conscientious employer.  Te-he.

Harassment training for regular employees need not be extensive, and the less "legalese," the better. An appropriate length of time is about 45 minutes, which should give you plenty of time to cover what your employees need to know:

*Which types of behavior can get them into trouble.

*What to do if they feel that they are being harassed.

*What to do if they believe that another employee is being harassed.

*That they cannot be retaliated against for making a good-faith report of harassment.

(Management training should cover all of these topics but also the manager's legal and policy obligations  when he or she becomes aware of alleged harassment, or should have known about it. This added component normally means that management training takes more time.)

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?

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. 

Is it legal to bribe your employees to be healthy? Wouldn't that violate the Americans with Disabilities Act, or the Genetic Information Nondiscrimination Act, or something? 

In other words, is it legal any more for an employer to offer incentives  -- like, money? -- to employees to participate in "voluntary" wellness programs?

The Bureau of National Affairs has obtained and released an opinion letter from Peggy Mastroianni, legal counsel for the Equal Employment Opportunity Commission, addressing these questions.

Voluntary Wellness Programs and the ADA

As most of our readers know, the Americans with Disabilities Act generally prohibits employers from asking for medical information from current employees. One exception to the rule is when the inquiry is "job-related and consistent with business necessity," which is not the subject of today's post.

Another exception applies to inquiries that are part of a "voluntary wellness program," provided that the information obtained is kept confidential and not used in a manner that violates the ADA.

What many readers may not know is this: The EEOC has never taken a formal position on whether incentives to participate in a wellness program mean that the program is no longer "voluntary." If the wellness program is not voluntary, then any medical inquiries without "cause" would violate the ADA.

Many, many, many wellness programs today offer cash or other incentives to employees who participate. Although the EEOC has not taken a position, it has indicated its approval of incentives (with some provisos) in its regulations interpreting the Genetic Information Nondiscrimination Act. Based on this, employers are probably safe in continuing to offer wellness incentives, and we can hope that if the EEOC decides to take a contrary position on the ADA implications, the agency will enforce it prospectively and not retroactively.

What the GINA Regulations Say About Voluntary Wellness Programs

The EEOC's regulations on the employment-related part of the GINA (aka "Title II") deal extensively with wellness programs. Mastroianni's opinion letter is essentially consistent with the GINA regs. It is ok to ask for "genetic information" in connection with an "incentive" voluntary wellness program IF

*The employee first provides a knowing and voluntary written authorization allowing the wellness provider to request this information.

*The paperwork that the employee has to fill out clearly designates questions that may elicit "genetic information" and clearly indicates that the employee does not have to answer those questions and will not forfeit any part of the incentive by refusing to answer.

*If the employee chooses to answer and provides "bad" information (for example, a family history in which every male has died of a heart attack before the age of 50, and the employee is a 49-year-old male), the employer cannot use that information as the basis for any adverse action against the employee. (In fact, the employer should never receive this information at all, as discussed below.) On the other hand, the wellness provider may use the information to recommend a disease management program for the employee. For example, it would be fine for the wellness program to recommend that the employee consult with a cardiologist, take steps to lower his "bad" cholesterol, and be assessed for bypass surgery, angioplasty, or catheterization.

*Even the disease management program itself can offer incentives to participants without violating the GINA. In other words, the program can offer an "incentive within an incentive." But the incentive must be equally available to those who are at risk "through no fault of their own" (for example, because of bad family history), and to those who are at risk because of unhealthy lifestyles (for example, because they live on a diet of french fries smothered with gravy and nacho cheese, and smoke four packs a day).

*The wellness provider may not disclose any individually identifiable health information to the employer, although it may disclose aggregated information.

*****Keep in mind that the GINA definition of "genetic information" includes family history information.*****

As the EEOC would say, We hope this has been helpful to you.

Are no-fault attendance policies to go the way of the horse and buggy?

Employers would do well to ask themselves that question, in light of the recent $20 million settlement between the U.S. Equal Employment Opportunity Commission and Verizon Communications. First, let's debunk a few erroneous assumptions about the settlement:

*We can blame this on the overly-aggressive, anti-employer Obama Administration. Nope. Actually, the case began with a Commissioner's charge filed in the fall of 2008, when George W. Bush was still in office.

*Well, then, we can blame it on that horribly-liberalized Americans with Disabilities Act Amendments Act. Nope again. The ADAAA didn't take effect until January 1, 2009. The charge against Verizon was already pending by that time.

*OK, whatever. But this still isn't any big deal. I've read all those articles about how employers need to be flexible with their leave policies, and I'm trying to do that now. Great! But that isn't what the Verizon case was about. The case was about charging absences under a no-fault attendance policy to employees who missed work because of medical conditions that were "disabilities" within the meaning of the ADA. It does not appear* that medical leaves were at issue. Exempting ADA conditions from no-fault attendance policies is a huge deal.

*Facts are sketchy because the parties reached an agreement before the EEOC actually filed suit. The lawsuit and the proposed consent decree that will settle the lawsuit were filed at the same time.

*Yawn. The Family and Medical Leave Act already says you can't charge no-fault absences against someone who's out for an FMLA-qualifying reason. True. But the EEOC's interpretation of the ADA(AA) means that no-fault absences shouldn't usually be charged if the absence is due to a disability even if the employee does not qualify for FMLA leave -- whether it's because she hasn't been employed for 12 months or 1,250 hours, or because he's exhausted his entitlement already.

*Well, anyway, the EEOC is a big dog and gets settlements like this all the time. Not true. This is the biggest settlement in the EEOC's history, according to the agency.

*Well, then, Verizon is a great big wimp. Maybe yes, and maybe no. I vote no, although I can't help wishing that Verizon had put the EEOC to the test. The threatened litigation was against 24 subsidiaries nationwide on behalf of employees represented by the Communication Workers of America (who, by the way, has an iPhone app -- they don't call 'em "Communication Workers" for nothing!), and in addition to the Commissioner's charge, charges were filed by the CWA and individual employees. Litigation of this scale brought by an agency of the federal government promised to be astoundingly expensive and disruptive, even if Verizon were to eventually win. As part of the settlement, Verizon got a pretty good deal (considering) on how to apply its attendance policy in the future. The proposed consent decree (see paragraph 20.03) at least allows the company to consider whether the employee or designee followed the company's procedures, whether the absences have been or are expected to be "unreasonably unpredictable, repeated, frequent or chronic," and whether excusing the absences would be an undue hardship. 

You digress. What about your original question? Oh, yeah. Sorry. In my opinion, employers should seriously reassess the utility of no-fault attendance policies. The FMLA has prohibited charging of no-fault absences for a long time. Most employers I know voluntarily refrain from charging no-fault absences to employees who are out because of work-related injuries or illnesses. Now, it appears that the EEOC's position is that exceptions have to be made for "disabling" conditions, and with the ADAAA, that means a lot of conditions. So, with all these exceptions, an employer has to ask: Is there any point to having a "no-fault" attendance policy?

In the old days before no-fault policies, certain types of absence were treated as "excused," and other types of absences were treated as "unexcused." There were lesser or no penalties for excused absences but fairly severe penalties for unexcused absences. Most employers abandoned these policies at least 20 years ago, before the FMLA and the ADA were gleams in a Congressman's eye, because it took too much effort to police them, and it made sense to treat employees as adults. In light of the Verizon settlement, employers may want to consider returning to the more-paternalistic "fault-based" attendance systems.

What do you think? Talk amongst yourselves.

In my opinion, the Supreme Court's decision issued Monday in Wal-Mart v. Dukes is fantastic for employers. Not all class action litigation is a racket, but much of it is, and plaintiffs' lawyers have been known to use the threat of financial devastation resulting from nationwide class suits to pressure employers into paying large settlements.

(No, really? You don't say!)

The Supreme Court has taken some of the wind out of those sails by requiring that claims based on disparate employment decisions be litigated individually (or, at least, as multi-plaintiff non-class claims, which also require individualized proof).

Not only that, but individualized claims for relief (including damages and injunctions) must also be tried under a procedural rule* that allows putative class members to "opt out" and provides more extensive safeguards for defendants' rights. The Court also said that plaintiffs cannot bypass this requirement by using a random sampling and mathematical formula to calculate class members' individual damages.

*Law geeks can scroll down to compare Rule 23(b)(2) with Rule 23(b)(3).

I was quoted yesterday in Law 360 about the case, and on Tuesday the publication quoted my colleague, Joe Murray, who will have an article on this subject next week in BNA. (No links to Law360 because subscriptions are required.) There has been a lot of good commentary around the internet, including (but not limited to, as we lawyers like to say) by Daniel Schwartz, Walter Olson, the New York Times (log-in required), Mark Toth, and Constangy's own Mike Maslanka. From the plaintiffs' side was a good piece by Donna Ballman (by the way, I agree with Donna that this decision will not affect the vast majority of plaintiffs' cases), and an interesting feminist perspective from Jezebel. (I report, you decide.)

The latest controversy over the decision has been exactly how much the plaintiffs' lead firm has lost in this case. The firm says $7 million, but PointOfLaw is skeptical, and makes a pretty strong argument that the firm's estimate should be taken with an enormous grain of salt.

What do you think about the decision? Was it a wise one? Do you think it will protect employers? Do you think it will hurt plaintiffs? No matter whom it hurts or helps, do you think it was fair? Do you think, like Walter Olson, that the decision will be legislatively overruled in a couple of years?  Do you think same principles can be used to defeat certification of collective actions under the Fair Labor Standards Act?

Do tell!

The U.S. Equal Employment Opportunity Commission held a public hearing this week on leave of absence as a reasonable accommodation under the Americans with Disabilities Act.

This is a smokin' hot subject, particularly in light of the ADA Amendments Act and its regulations, which expand the ADA's coverage to a dramatically larger population, the "new," more activist EEOC under Chair Jacqueline Berrien, and two recent multi-million-dollar settlements in leave-of-absence lawsuits brought by the EEOC against Sears, Roebuck & Co. and Supervalu, Inc. (Jewel-Osco).

John Hendrickson, the EEOC's Regional Attorney for Chicago, said that these settlements contained five lessons for employers, and that's what I'd like to talk about today because Hendrickson's points are consistent with warnings we've been giving to employers for quite some time.

1. An "inflexible period" of leave will not satisfy ADA requirements. Most of the employers I've worked with have very generous leave of absence policies -- one employer I know offers up to two years of leave for a single medical condition (and possibly more, if the employee contracts a new condition). However, many policies provide for "automatic" termination if the employee's leave exceeds the designated period of time.

Nunh-unh, no can do, says the EEOC.

If the employee needs, say, two years plus two weeks, but then will be able to return to work, you have to consider granting that additional two weeks.

Or, if the employee can come back but needs reasonable accommodations (including reassignment to a vacant position), you have to consider allowing the employee to come back in the new capacity.

And when I say "consider," I mean, seriously. I mean, if you decide to say no, you'd better have a darned good reason.

Your next question may be, Well, if our leave is so generous and we still have to do all this when an employee has been out of work (and probably receiving disability benefits or workers' compensation), then why on earth do we want to offer so much leave in the first place? And my answer to that would be, Good question, and a point that was made by an employers' lawyer who testified at the EEOC hearing. You can shorten the "maximum leave" under your policy, as long as you comply with the requirements of the Family and Medical Leave Act. (You should check applicable state laws, as well.)

2. "Appropriate leave" requires an "individualized assessment" when the designated leave period expires, if not before. See #1. The "individualized assessment" would include determining whether the employee needs additional leave beyond the official company maximum, and whether the employee can come back to work with a reasonable accommodation.

Many employers still require employees returning from medical leaves of absence to be "100 percent recovered," or able to return to work without restrictions. These requirements have arguably violated the ADA from the get-go (in my opinion, they have), but there is no question that they should be scrapped in our modern era. If an employee has restrictions, the employer is supposed to assess whether the employee can return to work with a reasonable accommodation. If not, then it may be ok to terminate. But if so, then the employer should allow the employee to return to work.

And, have I mentioned that "reasonable accommodation" includes reassignment to a different vacant position?

3. Keep your friends close, and your leave administrator and ADA decisionmaker closer. Many employers outsource leave administration to a third party. Meanwhile, the person making decisions on ADA accommodations is usually someone in Human Resources, in consultation with the employee's supervisors and managers, and possibly legal counsel.

This is a fine arrangement, as long as the leave administrator stays in close contact with HR or legal counsel, and knows how to identify potential ADA issues. (Which should be a cinch now that virtually everyone on an extended medical leave qualifies for ADA coverage.)

That said, third party administrators, or even in-house leave administration "specialists," should almost never be the ones to terminate an employee for hitting the maximum allowable leave. A best practice would be for the leave administrator to refer these employees to Human Resources or legal counsel for an ADA assessment. The decision to terminate, extend leave, or bring back to work with or without reasonable accommodations should be made by HR/Legal in consultation with the appropriate operations management.

4. Ya gotta talk to the employee. The reasons for this rule are too numerous to mention. From a pure morale standpoint, it's always good to stay in touch with an employee on medical leave because it makes the employee feel that she's still "part of the family" and makes return to work that much easier. But just in case these warm and fuzzy reasons aren't enough to satisfy you, allow me to use more persuasive methods. (Imagine Dr. Evil laugh here. Mwahahaha.)

Many jurisdictions require that the employer and employee conduct an "interactive process" when discussing possible ADA accommodations, and the EEOC takes this position as well. The "interactive process" is fancy-lawyer-talk for having a discussion with the employee (ideally, face-to-face, but phone or email will suffice if the employee can't come in) about possible reasonable accommodations. In these jurisdictions, the failure to engage in the interactive process is an ADA violation in itself.

Even in jurisdictions like mine, which do not require an interactive process, failing to engage in the process means that the employer "assumes the risk" if there is an accommodation that might have worked but was missed because the employer didn't talk to the employee.

For these reasons, I strongly recommend that all employers, no matter where they are located, discuss directly with employees their reasonable accommodation options and get the employee's suggestions. (Employers with unions will, of course, have to include the union representatives in these discussions.)

5. Better get used to being sued by the EEOC. The agency believes that private plaintiffs' attorneys will not usually have the resources to be able to pursue these "systemic" discrimination cases involving automatic terminations at the end of medical leaves. 

So, to paraphrase all those spam email jokes that we love so much, you may be a defendant in an EEOC lawsuit if

*You have a "100%-recovered/no restrictions" requirement for return from a medical leave of absence;

*You automatically terminate employees who reach their maximum leaves without making "individualized assessments";

*You delegate all of your medical leave terminations to your third-party administrator, or your benefits administrators; or

*You don't engage in "the interactive process" before automatically terminating employees who reach their maximum leaves.

(Sorry that wasn't the least bit funny. Hey - just like the spam email jokes!)

Generally speaking, the EEOC is a formidable plaintiff. Unlike private plaintiffs' attorneys, the agency does not have a strong economic motivation to settle cases early and inexpensively. They'll serve you with aggressive written discovery and requests for documents, and they'll want to take everybody's deposition. They'll file motions and fight every motion that your side wants to file. They dig "systemic" cases, where they can get large verdicts or settlements that they can post on their "Newsroom" web page. This is not to say you can't beat them, but most employers will prefer being in compliance to being a test case.

Forewarned is forearmed, as they say.

Happy Memorial Day weekend, everybody! Top stories this week:

When are employers liable for the bad behavior of their customers? The sexual assault charges against Dominique Strauss-Kahn, former head of the International Monetary Fund, who allegedly attacked an African-immigrant maid in his hotel room in New York City, have spurred some interesting discussion about female employees in the restaurant and hospitality industry, and their exposure to sexual harassment. According to some commentary, women in these industries -- particularly housekeeping staff and waitresses -- are seen as "fair game" by certain guests and patrons. The fact that many of the women are also immigrants may make them even more vulnerable to such behavior.

I have to admit I have a personal bias. I believe it. I was a waitress a very long time ago (when sexual harassment was still legal -- does that date me, or what?), and I do remember getting a lot of comments from male customers that I never got in any other job before or after.

Anyway, employers in these industries and others should be aware that they can, under certain circumstances, be liable if their customers harass their employees.

A bit of history/nostalgia: In 1976, our nation celebrated its Bicentennial. It was a big deal -- even Mickey Mouse, Donald Duck and Goofy, and Kiss, got into the act. Around that time, the owner of an office building in New York City (what is it with that town, anyway? Kidding!) decided that it would be a good idea to require female employees to wear a "Bicentennial costume," consisting of an American-flag poncho with big gaps in the sides and nothing under it except undies, hot pants, and sheer pantyhose. The plaintiff, who was a lobby attendant and had not intended to become a worker in the sex industry, complained that the immodest costume caused her to be hit upon. She was eventually fired for refusing to wear it.

(Imagine being scantily-clad against your will in an elevator with some newly-separated middle-aged lecher in aviator glasses and a leisure suit who's just discovered the sexual revolution. And no concealed-carry laws back in those days, either. What a nightmare.)

Anyway, the EEOC sued, and won. The case is a landmark, in part because the court found that even though the sexual harassment was by visitors and tenants, and not the employer, the employer was liable for forcing the women to dress in a way that invited harassing behavior.

You may be thinking, Well, then, why don't we ever hear about waitresses at a business like Hooters suing for sexual harassment? The difference, I think, is the nature of the business and the reasonable expectations of female employees when they go to work. If you choose to work at a place called "Hooters," presumably (WARNING: LINK CONTAINS CONTENT THAT SOME MAY FIND OBJECTIONABLE) you know what you're getting into and assume some amount of risk. This is not to say that a "Hooters Girl" couldn't have a valid claim of sexual harassment, but she is probably not going to be able to assert a claim based only suggestive comments or propositions by customers, or even a pat or two.

By contrast, in the "Bicentennial" case, and in most housekeeping and waitressing jobs, the women are not knowingly taking jobs in an industry in which sex is the "product."

I have not seen any indication that the hotel where Mr. Strauss-Kahn was staying should be liable for his alleged behavior. But employers in the retail and hospitality industries should make sure that they have processes in place to deal with customer harassment, whether it's on the basis of sex, or race, or national origin, or any protected category. Employees should know to report inappropriate behavior by customers and that such behavior will not be tolerated.

State laws requiring E-verify are legal, says Supreme Court.  A 5-3 majority of the Supreme Court upheld yesterday the Legal Arizona Workers Act, which requires employers to use E-verify and allows the state to revoke the licenses of businesses that knowingly hire illegal workers. The plaintiffs, who included the U.S. Chamber of Commerce and immigrants' rights groups, had argued that the Arizona law was preempted by the federal Immigration Reform and Control Act of 1986. Chief Justice John Roberts wrote the majority opinion, joined by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. The dissenters were Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Justice Elena Kagan recused herself because she had been involved in this case while she was Solicitor General.

Interestingly, the Arizona law had been enacted during the administration of Janet Napolitano, now head of the Department of Homeland Security for the Obama Administration, and upheld by the often-liberal U.S. Court of Appeals for the Ninth Circuit. Immigration politics certainly does make strange bedfellows.

Three other states -- Mississippi, South Carolina, and Utah -- have similar laws, and we can expect to see many more now that the Supreme Court has given them the thumbs up.

NLRB Facebook cases -- have they jumped the shark? The National Labor Relations Board is issuing complaints right and left against employers who have allegedly fired employees for bad-mouthing the employers on Facebook. This has prompted one commenter to ask whether these complaints are even "news" any more. The NLRB's position is that social media postings are often "protected concerted activity." Employers should certainly be aware of the risks of taking action against employees based on their social media postings and should consult with counsel before doing so. But otherwise, it probably does make sense to chill until we get some actual decisions from the Board and the courts.

Obesity, work linked. The other big story in the news this week was that sedentary jobs  . . . make you fat! An obvious point, to be sure, but wouldn't fresh air and exercise during the day be a great wellness initiative? And, does this mean that we can now collect workers' comp benefits for obesity-related diseases, like diabetes and hypertension? Te-he.

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!

"If you tell the truth, you don't have to remember anything." Mark Twain

"No man has a good enough memory to be a successful liar." Abraham Lincoln

"A half truth is a whole lie." Yiddish Proverb

"Those who think it is permissible to tell white lies soon grow color-blind." Austin O'Malley

Q. "How do you know when a lawyer is lying?" A. "His lips are moving." Old lawyer joke. Har-de-har-har, Alice.

All of us have been guilty of fudging on the truth, if not out-and-out lying, from time to time. But the fact that we've done it doesn't make it right. There are many reasons that honesty is the best policy, and with a hat tip to my colleague Bill McMahon for suggesting this topic, I'd like to talk about why it is important in the employment context.

First, the obvious: Perjury is a crime, and so is obstruction of justice. If you lie under oath, or in connection with a government investigation, or destroy or falsify evidence, you have committed a crime, and you could go to jail. If that's not a deterrent to lying, then I don't know what is.

But because none of you are perjurers or obstructors (obstructers?), I'll focus on the "little" lies that we are more likely to tell, and how they can come back to bite us as employers.

The truth, a fragment of the truth, and nothing but a fragment of the truth. The company is having a rough time in a bad economy, and a rumor begins that there will be a reduction in force next Friday. You don't want to have to say anything about the RIF until the day that it will take place, but you want to put an end to the gossip. So you call an employee meeting and say, "There is no truth whatsoever to the rumor that we are having a reduction in force next Friday." Technically, you have told the truth because the RIF is actually scheduled for the following Monday. Shame, shame, shame! Even though your statement was true and even though you may have bought yourself a weekend of peace, you'd better enjoy that weekend while you can. Come Monday, your credibility will be ruined, not only with the employees who will be let go, but also with those who stay.

Or, maybe you finally managed to terminate an employee (we'll call him "Joe") who has been a thorn in your side for many reasons, no one of which is bad enough in itself for termination: mediocre attendance, lackluster performance, annoying personality, and the last straw was suspected misconduct (let's say embezzlement). In telling Joe the reason for the termination, you're afraid to get into that suspected embezzlement issue, and the lackluster performance and "personality" are a little squishy, too. So you tell him that he's being terminated for attendance, and that's what you tell the folks at your unemployment agency . . . in writing and under penalty of perjury, of course.

Joe then files an EEOC charge, saying that you must have discriminated against him because he didn't have enough attendance points under your policy to warrant termination. You tell the EEOC, "Yeah, but he also had lackluster performance, an annoying personality, and we had reason to believe he was ripping off the company!" The EEOC says, "Oh, really? Then why didn't you tell Joe or the unemployment commission about those other grounds?" and next thing you know you're sitting in a conciliation meeting deciding whether it's worth $300,000 and 18 months of reporting to get Joe the Thorn out of your side once and for all.

It is legal to terminate an employee for being "substandard" in multiple areas, and it's legal to terminate based on reasonable suspicion of misconduct. So, if that's really the reason you're getting rid of Joe, tell him that, and tell the unemployment people that, too.  

Deliberately mischaracterizing the issue. This is one that, I'm sorry to say, our President has used, but he's not the only one. An employee complains to you about a legitimate, substantive issue that -- for whatever reason, you aren't able to fix. Rather than getting bogged down in a discussion about something you can't change anyway, you "admit" to a "communication problem." Sometimes communication is a problem, but if it's not and the employee has a substantive grievance, it's much better to acknowledge that,  provide a brief explanation as to why it can't be resolved, and offer to do what you can.

The "non-apology" apology. The Subversive Copy Editor has a satirical list of "non-apologies" that is as funny as it is sad (because so true). My personal favorite is, "Ah, I see now. Thanks for explaining. No worries!"

When you've done wrong, failure to admit it is an honesty issue. "Mistakes were made" isn't really a lie, but it's not as honest as it could be. "I was wrong, and I'm sorry," sounds so much better, doesn't it?

Why should an employer care about this? Because plaintiffs' lawyers, the Equal Employment Opportunity Commission, and any agency or court will tell you that many of the charges and lawsuits filed against employers have no legal merit but were filed because the employee, with some justification, believed that he or she had been "done wrong" by the employer. Even though the employers eventually win these cases, they have to go through the expense and hassle of retaining counsel, drafting and submitting position statements, attending mediations, and defending themselves in court.

If you don't believe that a sincere and honest apology will help, think about the way you feel when a stranger shoves you on the street. If the stranger says, "Get outta the way, buddy," or says nothing, you'll probably be stewing for at least 15 minutes until you get distracted by something else. But if the stranger smiles apologetically and says, "Excuse me," you will be over it immediately. That's the way it works in employment litigation, too. Erich Segal was wrong: Love means having to say you're sorry . . . a LOT.

Of course, the apology should be sincere to be effective. If you are really sorry, your actions will support your words. If you're not sorry, then don't apologize because your insincerity will show. Also, the classic non-apologies "I'm sorry YOU were offended" or "I'm sorry IF I was rude" aren't recommended. Instead, you might be better off trying to explain what you did and why you believe it was the right thing to do. 

Not even the white lie is safe. "No, honey, you don't look fat in that dress." "Do you really have to leave so soon?" "I'm doing just super, how are you?" We tell little lies like this all the time, and usually with the good intention of trying to avoid hurting someone's feelings. (Or, in the case of "I'm doing just super," to avoid boring them to death with our problems, which we know they don't really want to hear about.)

Similarly, it is notoriously hard for an employer to tell an employee that he's not doing a good job, and is one more screw-up away from being fired. Of course, having never been properly warned, the employee then commits the final screw-up and gets fired, and didn't even see it coming because the employer was so afraid of hurting the employee's feelings. (As if getting fired without due warning doesn't itself hurt one's feelings!) Not only is this unfair to the employee, but it's also throwing the door wide open to an allegation that the employee was actually terminated for an illegal reason.

Here are some examples of gross understatements commonly seen on performance evaluations:

"Mary is improving in her interpersonal relations." TRANSLATION: "Mary now cusses out her supervisor only once a week, whereas she used to do it twice a week."

"Generating new business continues to be a development need for Clyde." TRANSLATION: "Clyde hasn't generated a new customer in two years. If he doesn't find one by close of business Friday, he's fired."

"Linda has had challenges in adapting to technology." TRANSLATION: "Linda is still carving her memos into stone tablets."

Have you heard these before? The problem is, when it comes time to terminate Mary, or Clyde, or Linda, you have a problem because you have not clearly let them know that their performance is unacceptable. That's bad enough, but if you wind up in court, you will also have trouble convincing a judge or jury that this person was really that bad. If Mary was cussing out her boss on a regular basis, why didn't you say so? The fact that you didn't (even if it was because you wanted to "encourage" Mary to improve) is going to be used as evidence that you manufactured a reason to get rid of her and that the real reason was illegal.

Similarly, and for the same reason, don't ever say you're terminating an employee because of a "RIF" or "job elimination" when you're really not.

Admittedly, you are not going to be able to disclose everything going on at your company, and there may be times when tact is required. Here are a few suggestions for dealing with those situations honestly:

*If you're not at liberty to talk about something (such as an imminent reduction in force), say that. If that's giving too much away, you may be able to admit that the company is trying to do the best it can in the economy and leave it at that.

*If you want to pull your punches on the reason for a termination so that the employee can collect unemployment, don't lie or provide an incomplete explanation to the unemployment agency. Rather, give a truthfully vague explanation that encompasses all of the real reasons. In the case of Joe, above, you might say, "Overall loss of confidence," or "Employer dissatisfaction in multiple areas of accountability."  These reasons will allow him to collect unemployment but don't conflict with the specific reasons for Joe's termination. You should also be sure that Joe himself knows exactly why you are terminating him and knows you are purposely going to be vague so that he can get his benefits.

*If you want to say that an employee's job was "eliminated" to allow her to save face and collect unemployment, make sure you and the employee agree to that in writing. If you allowed her to "resign," be sure that she understands you'll have to tell the unemployment agency that it was a forced resignation so that she will be eligible for benefits.

*If you really think it's best to be as upbeat and positive as possible in performance evaluations, be sure you are addressing any problems somewhere else -- for example, by providing progressive written warnings. 

"Honesty is the first chapter in the book of wisdom." Thomas Jefferson

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. 

Everybody on the employer side likes to pick on the Equal Employment Opportunity Commission, and the temptation is even greater now that its chair has taken such an aggressive stance on issues like pre-employment credit and background checks. However, employers occasionally shoot themselves in the foot (feet?) with the agency by making mistakes that only compound their problems. If you can avoid making these nine mistakes, chances are good that you (and your company) will be on the list of employers to whom the EEOC gives the benefit of the doubt – a very good place to be.

No. 9. They don't communicate. Many employers and their attorneys fail to stay in touch with the EEOC while an investigation is taking place. Yes, it is true that the Commission is the guilty party at least as often as the employer. But whether fair or unfair, the employers are the ones under investigation and therefore bear the practical burden of showing that they acted properly. Proactive communication with the EEOC investigator builds credibility for the company and for the attorney who represents it.

No. 8. They underestimate. Many employers and their counsel underestimate the competence and professionalism of the EEOC. Don’t laugh! They assume that the EEOC will not give the employer a fair shake, or that the investigator is not smart enough to identify the relevant issues in a charge. In my experience, this is unfair to most EEOC investigators -- although they may have a pro-employee bias (just as most of us have a pro-company bias), most do want to find the truth and be fair to both the employer and the charging party.

No. 7. They don't expect to litigate. This is closely related to No. 8. Although litigation (rather than a dismissal and notice of rights) is still the exception, the EEOC has been known to go to court – especially when class relief is possible (as with the aforementioned background and credit checks), when religious discrimination allegations are involved (because many people with deeply-held religious beliefs do not believe in filing suit on their own behalf), or when one of the EEOC's favored causes is at issue (currently, disability/genetic discrimination, disparate impact discrimination, and the ever-popular retaliation). Since President Obama was elected, the agency has been hiring litigators like there's no tomorrow, which can mean only one thing. (If you don't believe me, scroll through the agency's recent press releases and see how many lawsuits they've filed against employers since Jacqueline A. Berrien became the chair.) And I can tell you from my own experience that the EEOC is generally a pretty hard-working and effective adversary.

No. 6. They retaliate. Hard to believe that anyone is still doing this – in this day and age! – but a few bad apples do continue to retaliate against employees for engaging in activity protected by the anti-discrimination laws. There are two broad categories of activity that are legally protected: (1) participation and (2) opposition. "Participation" includes filing a charge, testifying against the company, and similar activity. "Opposition" includes activity that does not involve a formal process, such as making an internal complaint about discrimination against oneself or co-workers. It is important to remember that retaliation can exist regardless of the strength of the underlying claim.

For example, an employee may have a good-faith but legally weak claim of workplace harassment. Even though her claim is weak, it would still be unlawful for the employer to take action against her based on the fact that she made the complaint. It is also possible for a non-protected employee to become "protected" by the retaliation laws – for example, a white male who complains about discrimination against minority women at his workplace.

(It is possible to terminate someone for making a bad-faith complaint or for handling a legitimate complaint in a completely unconstructive manner, but this type of termination is treacherous and should not be undertaken without thorough legal review.)

No. 5. They don't mediate. Many of us were skeptical of the EEOC's mediation program when it was introduced a few years ago. We did not believe that EEOC mediators would ever give employers a fair shake. For many of us who gave it a try nonetheless, a pleasant surprise awaited. In my experience, the mediators have been generally fair and savvy (see No. 8 above), and have facilitated economical resolutions for companies. Not every case is suitable for mediation, but more cases are mediation-worthy than an employer might think.

No. 4. They wait. Yes, I know that the EEOC is slow, too, but I’m talking about delay as an employer tactic, not delay caused by heavy workload or negligence. Delay is sometimes a legitimate strategy to reduce liability or achieve other goals. But it is generally not smart, even if legitimate, where an EEOC charge is concerned. Employers should realize that once an employee files a charge, the statute of limitations on the federal antidiscrimination claims stops running until the EEOC disposes of the case. Thus, there is certainly no statute of limitations reason for employers to be dilatory. And, even though the statute of limitations stops, the accrual of back pay and back benefits does not. So the more you drag your feet, the more money you may end up paying to the charging party. You also may develop a reputation for being a stonewaller.

No. 3. They prevaricate. This is, thankfully, another problem caused by only a few bad apples. (I have never had a client do this.) To the extent that employers provide non-coercive advance preparation for their employees before EEOC interviews, or obtain legal representation before responding to charges, this is all perfectly legitimate and more than fair. However, employers who try to improperly conceal witnesses or evidence, falsify documents, threaten potentially adverse witnesses with discipline or discharge (or blacklisting), lie to the EEOC, or engage in other improper activity should watch it – they are hurting no one but themselves.

No. 2. They're not appropriate. This should be no surprise to any employer who is being honest with itself: Employers do not always take the appropriate action in addressing discrimination issues and do not always take corrective action when problems arise. Mistakes are unavoidable, but if you get a charge and realize that indeed you had not handled the situation appropriately, begin working to resolve the matter. If you act quickly (see No. 4 above), you may be able to reinstate a wrongfully terminated employee, or resolve the charge with a nominal settlement. If you make this your normal practice when you find that you have done wrong, you will create an outstanding reputation with the EEOC, and they'll often be willing to give you the benefit of the doubt on the cases you are willing to fight.

No. 1. They don't calibrate. The number one complaint from EEOC regional attorneys is that employers often fail to proactively monitor their EEO compliance. This is easy to neglect with all the other responsibilities that companies have. But wise employers will do all that they can to monitor the demographics of employment activity, especially for jobs that seem to be "segregated" by race or sex; keep EEO and harassment policies up to date; have good processes in place for employees to complain if they believe that they have been treated unfairly; and provide effective management training on employee relations, discipline and discharge, discrimination, reasonable accommodation, retaliation, and harassment. For larger companies, it is also advisable to monitor legal actions filed against the company (including lawsuits and administrative charges), even if frivolous, because heavy activity may indicate serious morale or perception issues if not bona fide discrimination issues.

PS - This "calibration" is even more important in light of the Supreme Court's decision last week in Staub, in which it recognized employer liability on a "cat's paw" theory.

All that said, here are a few tips from a more “employer-friendly” point of view:

• Don't assume, just because the EEOC is suing (see No. 7), that you have done wrong. The EEOC isn't always right, either, and you can win an EEOC lawsuit – especially if they seem to be litigating only because you happen to be on the wrong end of one of the agency's "hot" causes.

• Although you should not underestimate the competence and professionalism of the EEOC, don't overestimate it, either. Especially when writing your Statement of Position, be sure that you fully and in plain language explain all relevant background information and your position. You will generally not go wrong by trying to make the investigator's job easy.

• Don't try to avoid liability by claiming that a termination for cause was a “job elimination.” My mentor has a great old story about trying an age discrimination case (he was representing the plaintiff) in which the employer claimed "job elimination." The only problem was, the plaintiff whose job was eliminated was the president of the company. Uh . . . yeah.

This trick has been tried many times, and the EEOC is onto it. If you fired someone for a good reason, have the courage to admit it. If the person was terminated partly for cause and partly for economic reasons, say that. You will have a much easier time defending yourself if you're straight-up.

• Don't think the EEOC is being adversarial every time it asks you for information. Often, when the EEOC asks for more information, it is 99 percent ready to throw out the charge (that is, to find in the company's favor) and just needs one small item from you to wrap the thing up. Thus, unless the request is truly unreasonable, comply politely. When in doubt, consult with counsel.

• Speaking of adversarial, generally don't be with the EEOC. Some investigators require an adversarial touch, but these are in the minority. Most will be much easier to deal with if you are courteous and pleasant with them. Even if you disagree with their position or don't intend to provide certain information they've requested, you can “just say no” respectfully.

• Last but not least, if you do not have an in-house employment lawyer, don't handle even a seemingly trivial charge without the help of outside counsel. Here are examples of some mistakes that can turn little charges into big disasters: Inadvertently admitting to violation of a non-EEO law, providing too much information that allows the Commission to go fishing for trouble, presenting "facts" that turn out to be untrue. And, of course, committing any of the above “Notorious Nine.”

Latest dispatches from the employment law front:

If you're going to be an SOB, make sure you're an SOB to everybody. A federal district court in Kentucky granted summary judgment to the employer in a sexual harassment case. The female plaintiffs alleged that a charlatan "turnaround specialist" hired by their CEO was not "motivated by sexual desire" but was simply abusive and mean. The court found in favor of the employer based on the "equal opportunity harasser" concept: the evidence clearly showed that the "specialist" was abusive and mean to everybody, not just women. Among other things, he had "invited" the male production manager to step outside to the parking lot, presumably to fight. He had also cursed at another male employee, threatened him, and thrown a piece of paper in his face.

The "equal-opportunity harasser" concept is well established in the law because the essence of "discrimination" is to treat one group differently from others. If the plaintiffs could have shown that this consultant was a bully only to women, then they would have had a claim. But since he treated both sexes equally badly, he could not be found to have discriminated based on sex. For the same reason, the women's retaliation claims under Title VII of the Civil Rights Act of 1964 also failed -- because their complaints about the consultant were not complaints of sex discrimination/harassment, they had not engaged in activity protected by Title VII.

That said, consultants and managers who behave this way are toxic and should be dealt with promptly. In this case, the employees complained to the CEO, who removed the consultant from "service." (The plaintiffs sued after they were terminated for other reasons several months later.) Even if the employees don't have a valid discrimination claim, the morale issues caused by a bad boss are obvious. And employees who feel that they have not been treated with respect and dignity will be much more likely to take legal action against the company.

Dirty old men need love, too . . . or do they? A perennial problem for health care facilities, and especially nursing homes, is the patient who hasn't had the benefit of modern EEO, diversity, or harassment training, and doesn't understand that he or she cannot use racial epithets or grope the staff. Often, these patients are so elderly that they grew up in a completely different era and may not be familiar with modern standards of behavior. Or they may have diminished capacity because of senile dementia or Alzheimer's.

In any event, they can't be thrown out onto the street as easily as a 35-year-old able-bodied employee who is a jerk at work. But what does the employer do when the patient mistreats, abuses, or even molests the staff?

According to the U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), the employer has to do more than just give the patient a good talking to. In Aguiar v. Bartlesville Care Center, the defendant nursing home had a resident who in his former life had a history of "domestic abuse, assault and battery, and violation of a protective order." Nonetheless, he was allowed to move freely in the nursing home and subjected the plaintiff, an aide, to unwanted kissing, groping, grabbing, and threatening behavior when she refused his advances.

The Center talked to him about his behavior, and documented the talks, and tried to assign another caregiver to give him his medications, but when another caregiver gave him medication, he would become hostile and go in search of the plaintiff.

After one such incident, in which the resident pursued the plaintiff, got into a shouting/cursing match with her, and called her a "b*tch," she retorted that he was a "pr**k." The next day, when questioned, she admitted to what she had said and was terminated. The person who had terminated her did not know the history of the resident's behavior or of the plaintiff's prior complaints, and was terminating her only because she had admitted to using abusive language with a patient.

The District Court found that the nursing home had done enough to try to end the harassment of the plaintiff and therefore granted summary judgment to the nursing home on the plaintiff's hostile work environment and negligent supervision claims. But the Tenth Circuit reversed, saying that a jury should decide whether the nursing home knew or should have known about the resident's harassing behavior and whether its response was adequate. Among other things, the nursing home said that it offered the plaintiff a chance to move to another area of the nursing home but that she had declined the offer. The plaintiff denied that such an offer had ever been made.

On the other hand, the Tenth Circuit affirmed dismissal of the retaliation claim, finding that there was no evidence that the manager who fired the plaintiff knew anything about the plaintiff's history with this resident.

Why bother? Prompt action by HR does no good, apparently. The U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) reversed a grant of summary judgment to an employer where the plaintiff alleged that her plant manager took her written complaint of harassment, wadded it up saying, "This is bulls**t," tossed it in the trash, and told her to leave and that he never wanted to see her again. Seems like an open-and-shut case for the plaintiff, no? But within two days of this alleged incident, the corporate HR manager told the plaintiff that she was not fired, and offered her the job back. The plaintiff refused to return and was treated as a voluntary quit. For this reason, the District Court granted the employer's motion for summary judgment, but on appeal the Eighth Circuit said that even a two-day termination might discourage a reasonable employee from engaging in the protected activity, so the plaintiff's claims will go to trial.

I just hope that the prompt action by this diligent HR manager will have some effect on the company's damages, if not its liability.

"Gender gap" on Wikipedia? Many of you have probably read about the recent angst of the Wikipedia Foundation about the fact that only about 15 percent of its postings are by females. The Foundation intends to take steps to increase the "female" presence on Wikipedia . . . not clear how that's gonna happen. Like the inflated "gender gap" in pay, which I submit is 99%* a result of voluntary work-family-lifestyle choices made by women, my reaction is . . . who cares? As far as I know, Wikipedia is doing nothing to prevent women from posting as often and as long-windedly as they want. If it turns out that women are statistically not as interested in pontificating on arcane subjects as are men, then let the guys do it. We have enough real problems to worry about.

*This is a statistic that I made up and is completely unscientific.   

The Cynical Girl has a great list of The Top Ten Reasons Why Your Boss Doesn't Like You. On a somewhat related note, here are some recent cases from employment law plaintiffs' bizarro world, for your weekend reading pleasure:

Naw, I'm pretty sure I was fired because of my race. The U.S. Court of Appeals for the Third Circuit (Delaware, New Jersey, and Pennsylvania) has affirmed dismissal of a race discrimination lawsuit brought by an employee who confessed to having ideations of blowing up his supervisor with explosives that he had stored in his garage.

Don't mess with Razorbacks -- they have memories like elephants. The U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) affirmed dismissal of a lawsuit against the University of Arkansas, in which the plaintiff alleged that he  was passed over for a promotion because of a prior discrimination claim . . . filed almost three years earlier. Oh, and the person selected was also more qualified.

Home Depot is *hic* a meanie! An employee of Home Depot had come forward asking for treatment for her alcoholism, and the company allowed her to go through its employee assistance program and returned her to work when her treatment was completed. Approximately a month later, the plaintiff was arrested for driving under the influence, in violation of her EAP agreement as well as the law. Nonetheless, Home Depot allowed her to continue working and was ready to grant her request for time off to attend Alcoholics Anonymous meetings, but about a month later, she tested positive for alcohol while on the job. At that point, the long-suffering Home Depot terminated her employment. She sued for violation of the Americans with Disabilities Act and the Family and Medical Leave Act. Thankfully, the U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, and Wisconsin) has affirmed dismissal of her lawsuit. 

Catbert lives . . . but he can't sue. A Human Resources manager was fired after he severely botched two terminations, both of which resulted in ethics complaints from the affected employees and one of which resulted in reprimands for the manager's bosses. In one case, an employee learned that he was being eliminated when he saw a new position - absorbing his job duties - posted in the company newsletter. In the other case, the HR manager told an employee being terminated in a reduction in force that his performance score was the lowest of his peers, when in fact three employees had scored lower but were being retained because of exceptional circumstances. The Third Circuit affirmed dismissal of the HR manager's age discrimination and retaliation claims. 

Of course, sometimes employers are in the wrong, too. 

Swiss bank UBS has been the butt of some teasing for its strict, extremely precise, and sometimes incomprehensible employee dress code. Particularly puzzling is its requirement that men's neckties match "the morphology of the face." (I've done a good bit of internet surfing trying to find out exactly what this means, without much luck. A commenter at Evil HR Lady says it means that men with wide faces should have wide knots in their ties, and men with narrow faces narrow ones. Maybe so. Whatever.)

In any event, there is no question that UBS would have the right to do this, even in America. Employers are generally free to establish dress and grooming standards that they consider appropriate, with a few exceptions. If a grooming standard tends to exclude individuals of a particular race, sex, nationality, or religion, the employer would have to show that the standard had a legitimate business justification.

For example, African-American men are more likely than Caucasian or Asian men to have a skin condition called pseudofolliculitis barbae. Close shaving aggravates the condition, and so African-American men have been successful suing employers who required male employees to be clean-shaven. However, where being clean-shaven was a safety issue (for example, with firefighters who need a good "seal" for oxygen masks), courts have upheld no-beard requirements.

It is also generally lawful for an employer to have dress and grooming requirements that are different for men and women, as long as the requirements are "equivalent." For example, an employer with a business-dress code can allow women to wear either pant- or skirt-suits while allowing men to wear only pant-suits, and requiring men, but not women, to wear neckties. As another example, an employer could require all employees to wear uniforms but have a "pant" uniform for men and a "skirt" uniform for women.

 On the other hand, it would be sex discrimination for an employer to allow, for example, men to wear "business casual" dress at work and require women to wear uniforms. The uniform indicates lower status, and so requiring only women to wear uniforms would be considered discriminatory.

Of course, if an employee is required by his or her religion to wear a certain type of clothing, such as a Muslim hijab (scarf), the employer would have to allow it unless there was a compelling reason -- for example, safety -- to prohibit it.

Absent evidence of discriminatory impact, then, there should be no problem with UBS's "morphology" requirement . . . if anyone ever figures out what it means.

"This is an employment-at-will state, and I can fire you for a good reason, a bad reason, or no reason at all." Technically, this is true in most states, but in effect it is a lie which employers rely on at their peril.

Suzanne Lucas of The Evil HR Lady has a post about an individual (sex not specified) whose employer offered him/her a different position in the company. When the employee declined the position, his/her "voluntary resignation" was demanded. In other words, the boss had tried to get rid of this employee by way of a transfer, and when that failed, forced the employee's resignation. According to the employee, he/she had never been warned of any job-related issues.

Suzanne prefaced her recommendations by pointing out that such a termination, while unfair, was perfectly legal in an employment-at-will state.

She has correctly stated the law, and she has made some excellent recommendations for employees in this position. From the employer's standpoint, she aptly (and bluntly) notes, "I wish managers would stop being so freaking lazy and wimpy and actually talk to employees about problems." However, I'd like to go a step further and note the very real possibility of a lawsuit against an employer who terminates an employee in this manner.

Why? Because even if you live in an "employment-at-will state," you do not really live in an employment-at-will state.

First, the employment-at-will rule does not apply to terminations that are conducted for unlawful reasons. And, as we all know, the list of "unlawful" grounds for termination is ever-growing. A termination because of race, sex, national origin, religion, color, age, disability, or, now, genetic information, or retaliation for related protected activity, violates federal law and many state laws. According to the National Labor Relations Board, termination for posting a comment on Facebook calling your boss an "[expletive deleted]" is illegal.

Under some state and local laws, ancestry and sexual orientation are also unlawful considerations. In some jurisdictions, including the District of Columbia, appearance discrimination is unlawful. In some states, termination in violation of the procedures set forth in an employee handbook is unlawful. And even in states that are considered more "employer-friendly," terminated employees can usually assert claims for public policy wrongful discharge, retaliatory discharge, and negligence.

So, now you may be thinking: Well, ok, but I'm not terminating this person for any of these reasons. I'm terminating him because I just can't stand him. Doesn't that fall under employment at will?

The answer is yes and no. Yes, because that is a facially lawful reason in an employment-at-will state. But also no, because an employee who is terminated for an arbitrary or unfair reason will have a much easier time claiming -- and possibly persuading an agency, judge, or jury -- that the stated reason is false and that the employer's real reason was an illegal one (for example, "Sure, he couldn't stand me because I'm 53, and he couldn't stand anyone over the age of 50, and that's age discrimination!").

So, even in an employment-at-will state, an employer should make sure that termination decisions are fair (which would usually include specifically warning a sub-standard employee about her deficiencies and giving her an opportunity to improve), well-documented, and conducted in a manner that is consistent with the employer's policies and procedures.

PS-"Right to work" is often confused with "employment-at-will" but actually means something completely different. Right-to-work states prohibit unions and employers from requiring union membership as a condition of employment.  

In my previous post, I noted that litigation under the Americans with Disabilities Act Amendments Act was starting to emerge from its dormant stage and promised to provide some best practices for employers to follow.

The most important thing to remember about the ADAAA is that, for the most part, all it does is change (albeit drastically) the definition of "disability." The ADAAA does not affect the old ADA's anti-discrimination, reasonable accommodation, confidentiality, or "medical examination" provisions. As a practical matter, what this means is that employers will no longer be able to rely on the defense of "no disability," but if they avoid discrimination and handle reasonable accommodation requests well, they should still be able to avoid liability.

With that "bottom line," here are my best practices for staying out of trouble in light of the ADAAA:

1. Unless the employee is claiming the flu or a common cold as the alleged disability, forget about nit-picking whether the condition is a "disability" within the meaning of the ADA. In all likelihood, it is. Challenging the employee's "disability" status is a waste of time with the new expanded definition of "disability" under the ADAAA. Proceed on the assumption that the employee is "disabled," and save your resources for ensuring that the employment decision is handled fairly and defensibly.

2. Unless the employee's medical condition really does prevent her from effectively performing the job or threatens her or her co-workers' health or safety, "with or without a reasonable accommodation," do not consider medical conditions in making any employment decisions. An obvious point, but I hate to omit it from a "best practices" list! (PS-And, yes, even "direct threats" have to be accommodated if possible.)

3. Unless the disability is obvious or for some other reason you do not question it, request documentation from a qualified medical professional before making any reasonable accommodations. The ADAAA has not affected your right to do this, and now that conditions like diabetes and hypertension are considered "disabilities" even if controlled, it will be more important than ever for you to verify that the claimed condition actually exists.

4. Engage in the "interactive process." This means simply sitting down with the employee and discussing reasonable accommodation options, "brainstorming" if necessary. This is a requirement in some jurisdictions, although not all, but even where it is not required, it is a good idea to seek the employee's participation in finding a solution. As the EEOC points out, sometimes the employee can propose an inexpensive, simple accommodation while you might have thought something more elaborate was necessary. Often, the employee herself will admit that no accommodation is possible, and that can be helpful to you, too.

5. In considering reasonable accommodation options, follow the EEOC's recommended priority: first, try to accommodate the employee in his current job; if that is not possible, consider transferring him to a position that is similar to his old job, and the more similar the better - in terms of job duties, hours of work, pay and benefits, and "perks"; if that is not possible, considering transferring him to a different position, even if that means a demotion or a change from full-time to part-time status; if that is not possible, place on medical leave (giving him his rights under the Family and Medical Leave Act if it applies); and only if all of those options are not possible should you terminate the employee.

6. Don't make accommodations that you don't have to make. Even under the new ADA, you still do not have to create a job, displace another employee, promote the disabled employee, or eliminate essential functions as reasonable accommodations. On the other hand, it may be in your best interests to be flexible: for example, the ADA does not require an employer to provide personal equipment (such as wheelchairs, eyeglasses, or hearing aids) to an employee with a disability, but in some cases that may be the easier and less expensive solution. If so, don't rule it out just because it is not required.

7. Know the difference between "light duty" and reasonable accommodation. These are not the same thing, but employers and employees often think they are. Light duty is intended to keep the employee involved in the workplace while recuperating from an injury, usually a workers' compensation injury. It often involves "make work" -- in other words, duties that the employer does not really need to have performed but assigns to the employee to facilitate recovery. Employers can put a time limit on the amount of light duty they will allow, and they can impose other conditions. Indeed, an employer does not have to offer light duty at all. Reasonable accommodation is different. It involves changes to a job that the employer actually needs to have performed so that a person with a disability can perform the essential functions of the job. Reasonable accommodations are mandated by the ADA (for those employers covered by the ADA), and the employer does not have the right to impose a time limit or establish a maximum number of reasonable accommodations it will make. Theoretically, at least, the duty to make reasonable accommodations lasts as long as the employee is in your workplace, and if her condition changes over time, you may have to adjust the accommodations accordingly.