Posts Tagged ‘Robin Shea’

Woman is Fired for Being Old and Ugly – A Win for the EEOC

Tuesday, October 8th, 2013

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2013 Triad Employment Law Update.

Robin Shea

Robin Shea, Partner at Constangy, Brooks & Smith

Let’s say your CEO fires a 53-year-old woman and says he’s doing it because she’s “old and ugly.”

If she finds out about it, can she sue for age discrimination?

My guess is 100 percent of you would say, “What are you, stupid? Of course she can!”

The following is a true story: A property management company in Oklahoma hired a new CEO. After his first month on the job, he terminated seven employees, as new CEOs tend to do. The next day, he fired an eighth — a 53-year-old property manager named Ms. Strength.  According to three people, the CEO privately told them that he terminated Ms. Strength because she was “old and ugly” and that he wanted someone “younger and prettier” in her position, and that he didn’t think she could meet potential tenants and entertain existing tenants after work because she was “older.” (The CEO denies having made any of these comments.)

Oh, and the company gave Ms. Strength a letter saying her job had been eliminated, when it actually hadn’t.

As you can imagine, the lawyers at the Equal Employment Opportunity Commission, having taken a few hits recently, found the case somewhat attractive from a litigation standpoint. In fact, they were like a wild dog smelling red meat.

So the EEOC sued the company on behalf of Ms. Strength for age discrimination, and the company filed a motion for summary judgment. You have to admit, that took nerve. Actually, it probably wasn’t nerve so much as desperation. Juries are notorious for sympathizing with older workers, and the company did not want this case to get to a jury.

I don’t know if there is anything called a “Hail Mary” motion for summary judgment, but there should be, and I believe this was one.

What in the world did the company argue? OK, I’m not saying these are good arguments, but here is what they said:

1. The Age Discrimination in Employment Act requires the plaintiff to show that “but for” a discriminatory motive, she would not have been fired or otherwise subjected to adverse employment action. Assuming that the CEO really made these comments (as the company was required to do at the summary judgment stage), he said that Ms. Strength was fired not only because she was old, but also because she was ugly. Therefore, age discrimination was not his only motivation — “looksism” was the other. And since he had two motives, the company should get summary judgment on the age discrimination claim.

Of course, the court shot this down. First, the court said, just because age has to be the “but for” cause, that doesn’t mean that it has to be the only cause. It’s more like the straw that broke the camel’s back. You can have other causes, but if the discriminatory cause is the one that puts the camel in traction, then the discriminatory cause is still the “but for” cause. My esteemed colleague Donna Ballman pointed this out not too long ago, after the Supreme Court’s decision requiring “but for” causation in retaliation cases.

Second, the court said, the CEO may have thought Ms. Strength was “ugly” only because she was “old.” You know the type, amIrightoramIright?

Strike one!

2. Then the company’s lawyers got even more creative. They were like, Oh, well, even if we have to go to trial on the age discrimination claim, the EEOC shouldn’t be allowed to get more than $100,000 because Ms. Strength admitted in her deposition that she would take $100,000.

(Under the ADEA, a prevailing plaintiff can recover back pay and benefits, front pay and benefits, plus that much again as liquidated damages, and — assuming she had her own attorney — attorneys’ fees, expert witness fees, and costs. In all likelihood, for a 53-year-old with a responsible position, significantly more than $100,000.)

Here’s what happened in the deposition. The company’s lawyer asked her, “If I could write a check to you, what amount would make you happy?” After some objections and argument between the lawyers, Ms. Strength said, “To be treated fairly . . ..” The lawyer said, “I’m asking for a figure. I want to know the amount. . . . You walk out of here today and have a Merry Christmas, what amount would that be?” Ms. Strength said, “100,000.”

Settlement negotiations are normally inadmissible. The EEOC (correctly, in my opinion) said that this was an inadmissible “settlement negotiation,” and also that the EEOC wasn’t limited to seeking what Ms. Strength might have accepted. The court agreed.

Strike two!

3. Finally, both the EEOC and the company moved for summary judgment on Ms. Strength’s alleged failure to mitigate her damages. The court granted the EEOC’s motion and denied the company’s.

(Does that make four strikes? And have I mixed enough metaphors in this post?)

I think the moral of this story if you’re an employer, and especially if you’re in HR or in-house counsel, is to do your best to make sure your executives don’t do stupid things, like firing people because they’re over the age of 50. (Or, for that matter, because they’re ugly — appearance discrimination is against the law in many jurisdictions, plus it’s mean to pick on people just because they’re homely.) Once somebody at the CEO level (allegedly) pulls a stunt like this, there is very little that you can do as a company except to give the plaintiff that check for $100 grand fast, before she changes her mind.

Robin Shea is presenting at the 2013 Triad Employment Law Update on November 5th at the Grandover Resort in Greensboro. In addition to receiving best practices for hiring and firing employees, attorneys from Constangy, Brooks and Smith, LLP will provide you with the most recent updates in state and federal employment law. Register today at www.capital.org/triadlaw.

Employers, Use Caution When Dealing with Unpredictable FMLA Leave

Thursday, February 21st, 2013

FMLA leaveThe Family and Medical Leave Act (FMLA) is a topic on which many HR professionals are knowledgeable. Preparing for a situation that requires an employee to take FMLA leave isn’t a major problem if the time off was scheduled in advanced.

Robin Shea, attorney for Constangy, Brooks & Smith and writer of the Employment and Labor Insider blog, suggests that problems occur when an employee who’s in a critical-but-inflexible position (like a customer service representative) needs intermittent leave under the FMLA unexpectedly.

In her article, Employer’s Bane: Unpredictable FMLA leave. Is there a solution?, Robin empathizes with employers on the implications that unexpected leave can have on their business. She writes:

Where the absences are unpredictable, it’s impossible for the employer to plan, and because the employee’s position is critical, there is no way to “let things slide” until the employee is able to come back.

She acknowledges that dealing with intermittent FMLA leave is no walk in the park. However, Robin cautions employers from executing solutions that yield bad results like a lawsuit. She uses the example below to inform employers of the consequence of mishandling FMLA leave:

One seemingly logical solution to this problem is to say to the employee, “Look, we recognize your need for FMLA leave, but we really can’t handle frequent unpredictable absences in your position. So here’s what we’ll do. We will temporarily reassign you to another position that better accommodates recurring periods of leave. We’ll leave your pay and benefits unchanged. Then, when you’re able to come back to your old job and attend on a regular, predictable basis, we’ll put you back in that position.”

 “Sounds great — thank you! What’s the new job?” (employee)

 “Uh, men’s room attendant. It’s a non-essential position, so it will be immaterial to us whether you ever show up for work or not.”

 This rubs employee the wrong way, especially since she’s a woman. Employee goes to U.S. Department of Labor and files a complaint. You lose, because the “temporary reassignment” option applies only if the leave is foreseeable.

After revealing another failed attempt to deal with this HR headache, Robin points out that there isn’t much employers can do to protect themselves.

When Robin has a client that is in desperate need for a solution, she suggests “requiring the employee to take “block” leave but counting only the “necessary” time against the employee’s 12-week FMLA entitlement. Any other time can be covered by PTO or short-term disability or workers’ comp, or just regular pay, and it cannot be counted against the employee for FMLA or attendance purposes.”

She also says that employees have the option to “tough it out” and grant the employee time off on the terms in which he or she suggests. Robin acknowledges that these aren’t good options and ends her article by saying, An employer should be able to keep its business running when an employee has to miss a significant amount of work on an unpredictable basis. I wish the DOL would provide employers with some workable solutions that are legal. But I’m not going to hold my breath.”

What are your thoughts on this tricky HR issue?

Photo Source: Muffet

POLITICS AT WORK: Employer Dos, Don’ts, and Be Very, Very Carefuls

Tuesday, October 23rd, 2012

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2012 Triad Employment Law Update.

With early voting already under way and only a short time until the real election day (November 6 – don’t forget!), this is a good time to provide some guidance for employers seeking to keep a civil workplace between now and November 7.

(By November 8, we hope that everyone has forgotten this entire ordeal and is back to normal until next year, when the 2016 campaign begins.)

HERE’S THE NOVEMBER 7 RULE: If your candidate won, do not “spike the ball in the end zone” at work. Wait until you get home. If your candidate lost, wish the winner well, or say nothing. Mourn for the demise of our once-great nation when you get home.

DO’s

DO encourage employees to “talk politics” with people they substantially agree with, or people who are still making up their minds and are looking for guidance. Discourage political discussions among employees who have fervently-held opposing views and whose minds are made up.

DO encourage employees to keep their political discussions courteous, respectful, and focused on the issues rather than personalities or candidates’ “EEO” characteristics, such as the President’s race or Governor Romney’s religion.

DO (if appropriate for your work environment) prohibit political discussion in the presence of customers, or when employees are expected to be actually getting some work done.

DO consult with applicable state law about voting leave, and comply with it. Please note that in some states you have to post a voting-leave-rights notice in advance of election day. Be sure you have done this if those laws apply to you.

DO be aware that, in a handful of states, it is unlawful for an employer to try to influence an employee’s vote. (The voting-leave chart linked in the prior “DO” includes these laws.) If you operate in one of these states, you should not overtly (with employees) endorse or oppose any candidate, referendum, or other initiative.

DO remind employees of your internet and email policies, and encourage them to be judicious and professional in sending or forwarding political emails or links.

DO feel free to break up employees’ political discussions at work if the atmosphere is becoming contentious or employees appear to be uncomfortable. DO encourage your employees to “self-police” political discussions by leaving, or warning their co-workers when the discussion appears to be heading into hostile territory.

DO feel free to ensure that political discussions do not interfere with getting the job done.

DON’Ts

DON’T have a flat ban on all political talk at work. As most employers know, the First Amendment does not apply to private workplaces, but the National Labor Relations Act could come into play if the discussions implicate “terms and conditions of employment.”

DON’T make, or allow others to make, comments about candidates that may be discriminatory or harassing based on the candidates’ or their supporters’ race, sex, national origin, religion, color, age, disability, or any other legally protected characteristic.

BE VERY, VERY CAREFULs

BE VERY, VERY CAREFUL about political discussions among employees about issues that are especially inflammatory or emotional, such as same-sex marriage, LGBT rights, reproductive rights, and affirmative action. These are legitimate topics for political discussion, but they are also sensitive and carry a high risk of creating hurt feelings or causing hostility.

BE VERY, VERY CAREFUL about sharing your company’s political views, assuming you live in the majority of states where this is legal. Be sure to preface your discussion with a statement to the effect that the decision of how to vote is the employee’s, and the employee’s alone. Then present the company view as “We wanted to share the Company’s position on [CANDIDATE OR ISSUE].” Keep the discussion objective, factual, and focused on issues, not personalities. At the end, remind employees that you are only sharing the company’s view and are not attempting to tell employees how to vote. But be aware that some employees will still view this as “pressure,” and take that into account in making the decision whether to share the company’s views at all.

CAI’s 2012 Triad Employment Law Update, scheduled for November 7 at the Koury Center in Greensboro, will provide additional information on staying compliant with state and federal laws. The conference will also provide material on several legal topics affecting employers, including ADAAA, FLSA Exemption, Immigration and Healthcare Reform. Register today at www.capital.org/triadlaw.

Tackling ADA and FMLA at the 2011 Triad Employment Law Update

Tuesday, December 6th, 2011

CAI hosted its annual Triad Employment Law Update at the Koury Center in Greensboro on November 9.  More than 150 HR professionals and company executives attended the conference to receive important updates on the latest developments in state and federal employment laws and regulations.

The sold-out conference featured presentations from law firm and conference partner Constangy, Brooks and Smith, LLP. Presentation topics ranged from correctly calculating compensable employee work hours to knowing how employees’ use of social media affects organizations.

Robin Shea, attorney and partner for Constangy and a conference favorite, presented information on two pertinent employment regulations: The Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

As a regular presenter at the Triad Employment Law Update, Robin says, “The conference is a great, cost-effective, and enjoyable way to ensure that your company is up to date on the latest developments in labor and employment law.”

Evaluations from the conference showed that guests enjoyed the speakers because they were knowledgeable, provided great information and kept them engaged. Multiple conference attendees commented positively on Robin’s presentation. She tried to keep her focus on the practical side of staying compliant while also making sure to entertain her audience. Knowing that employers have many questions related to ADA and FMLA, Robin avoided being overly legalistic and technical when she presented.

“Before the ADA Amendments Act (ADAAA) changes took effect in January 2009, the ADA had become almost a dead letter — it applied to such a narrow population of individuals that employers didn’t have to worry much about ADA compliance. Now that the definition of ‘disability’ has expanded so dramatically, the ADA has become extremely significant, and employers are rusty in applying it,” Robin said when asked why employers have so many questions related to the two acts.

She warns employers against punishing employees for absences that qualify as FMLA events 99.99 percent of the time. If a company does decide to take action for the remaining .01 percent, Robin suggests consulting an employers’ association or legal counsel beforehand.

Robin says the most important concept for understanding the ADA is that virtually every employee is “disabled” according to the definition found in the law.

“Be sure to consider all requests for reasonable accommodations. ‘Consider’ does not mean ‘grant,’ but do not reject any accommodation request out of hand,” she says about staying compliant.

Employers need to be aware of all the components that make up FMLA and the new ADA. Robin says that the federal government is looking for new test cases, so companies should handle these employee occurrences seriously and properly. She says that if you are not sure on what to do, ask for help before you do anything irreversible.

Constangy lawyers shared additional information on subjects important to employers. They also answered specific workplace questions from conference participants in the “Ask an Attorney” segment of the event.

“In our current regulatory and litigation climate, the value of this [conference] cannot be overemphasized” Robin says.

For more information on recent updates on FMLA and ADA or other employer related laws, please contact a member of CAI’s Advice and Counsel at 919-878-9222 or 336-668-7746. To get details on the next Triad Employment Law Update, please contact an account manager at the numbers above.

Photo Source: D. Begley

Employers, Don’t Be Overzealous with Your Wellness. Beware of the ADA and Everything Else.

Tuesday, November 1st, 2011

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2011 Triad Employment Law Update.

Do you want a healthy workforce? Of course! But don’t overdo it. A too-aggressive wellness program may make your company sick in the long run.

Employers and their insurance companies love wellness programs. They result in reduced premiums as well as (presumably) fewer big-money claims because they encourage employees to take better care of themselves.

Many employers offer “carrots” to employees to participate in wellness programs. There is no legal problem with “positive” incentives as long as certain requirements are met.

But some employers wield a “stick” as well. They actually penalize employees who refuse to participate. The City of Chicago has recently announced a wellness program that will require employees to pay $50 a month to opt out. That’s a lot of money for most people. Can penalties like this cause problems for employers? The issue isn’t settled, but I have some concerns. 

1. The ADA. First, the Americans with Disabilities Act (even the “old” version) does not allow employers to ask for medical information from current employees unless the request is “job-related and consistent with business necessity.” This usually means that there has to be a job-related problem that might be related to a medical condition, or perhaps a doctor’s note saying that the employee cannot perform his or her duties because of a medical condition. The employer generally cannot ask for medical information without a reason. Even when there is a good reason to ask, the medical inquiry must be confined to the work-related issue.

(For example, if an employee in a heavy-lifting position claims a bad back, the employer cannot require him to get a complete physical.)

The ADA does have an exception for medical information collected pursuant to a voluntary wellness program. But if the employer is hitting individual employees for as much as $50 a month if they decline to participate, how “voluntary” is that program?

At least two courts have found that “negative reinforcement,” such as Chicago’s, falls under a different exception in the ADA: the section that deals with “bona fide benefit plan[s] that are based on underwriting risks, classifying risks, or administering such risks that are based on or are not inconsistent with state law” and that are not a “subterfuge” to evade ADA compliance.

In one case, decided in 1998, the court upheld termination of an employee for insubordination who refused to provide medical information. In the other, decided this year, the court upheld a biweekly $20 deduction from pay for employees who chose not to participate in the wellness program. In other words, both of these courts found that the “voluntary wellness” exception wasn’t even an issue because wellness programs connected with health insurance plans fell within a completely different exception to the ADA’s prohibitions on medical inquiries.

With all due respect to these courts, I have a question: If every wellness program associated with a health insurance plan is automatically excluded from the ADA’s general prohibition on medical inquiries, then why does the ADA even have the “voluntary wellness” provision? Aren’t these courts effectively reading that provision right out of the ADA?

Another ADA concern I have is the fuzzy line (getting fuzzier every day) between lifestyle choices and actual or “regarded as” disabilities within the meaning of the ADA. If, say, someone who really likes food develops a weight problem, then she may become a “disabled” individual within the meaning of the ADA, and especially as amended by the ADA Amendments Act. It was reported this week that our friends at the U.S. Equal Employment Opportunity Commission (EEOC) filed suit against an employer for terminating a morbidly obese employee because of his obesity. The EEOC is contending that the employee’s obesity is a “disability” within the meaning of the ADA Amendments Act and that the company refused to consider reasonable accommodations, such as transfer to a job with lighter physical demands. (The company has thus far declined to comment, so all we have right now is the EEOC’s side of the story.)

Even alcoholism is a “disability” entitled to an intermediate level of ADA protection.

So there are some reasons I worry about employers who are too “enthusiastic” about promoting wellness. In any event, the ADA isn’t the only law that employers have to worry about.

2. “Lifestyle” or “lawful products” statutes. A number of states have so-called “lifestyle protection” or “lawful products” statutes, which essentially prohibit discrimination against applicants and employees based on lawful activities engaged in, or use of lawful products, during non-working hours. Even the narrower “lawful products” laws protect smokers as well as, presumably, drinkers, gourmands, skydivers (parachutes are “products,” aren’t they?), bungee-jumpers (bungee cords are “products,” aren’t they?), and other individuals who engage in risky but legal behavior. Yes, these laws usually contain exceptions, but employers need to be aware of their existence and make sure that what they’re doing fits into one of the exceptions.

There has been a lot of publicity lately about certain employers who have refused to hire anyone who smokes. One should assume that these employers are in states that do not have “lawful products” statutes. Don’t think that you can do it just because they did. If your friends all jumped in the lake, would you do it, too?

3. The GINA. Title II of the Genetic Information Nondiscrimination Act prohibits employers from “using, acquiring, requiring, or disclosing genetic information” with certain strictly defined exceptions. It also prohibits discrimination against individuals based on their genetic information. The statute defines “genetic information” so broadly that any family medical history information about the individual’s first four degrees of kinship — plus spouses and adopted children – is included.

The GINA has some exceptions for genetic information disclosed in connection with voluntary wellness programs, but the GINA provisions focus on the right of the employee to decline to answer questions that seek “genetic information.” (In other words, the GINA regs say it is all right for a wellness program to request “genetic information” as long as individuals aren’t excluded from the program if they decline to answer questions asking for “genetic information,” the “genetic information” requests are segregated from other requests, clear disclaimers are provided, and other requirements are met.) If the wellness program is not truly “voluntary,” then arguably the GINA’s permissive provisions would not apply.

The moral of the story: don’t be overzealous with your wellness! Reasonable minds differ on this subject, but in light of the ADA(AA), state laws, and the GINA, I recommend that employers keep the focus “positive” and avoid punishing those who continue to burn the candle at both ends.

CAI’s 2011 Triad Employment Law Update, scheduled for November 9 at the Koury Center in Greensboro, will provide additional information on ADA and how to handle the off-duty conduct of employees.  The conference will also provide news and material on several legal topics relevant to employers, including Wage and Hour, Workers’ Comp Reform, FLSA and Immigration. Register today at www.capital.org/triadlaw.

5 Egregious Errors that Endanger Employment Investigations

Tuesday, October 18th, 2011

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2011 Triad Employment Law Update.

Now that the Supreme Court has officially recognized “cat’s paw” liability for employers whose decisions are tainted by an individual with an unlawful motive, it is more important than ever for employers to conduct workplace investigations that are above reproach.

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

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

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

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

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

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

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

See the difference? Now you have some information! 

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

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

CAI’s 2011 Triad Employment Law Update, scheduled for November 9 at the Koury Center in Greensboro, will provide additional information for conducting successful employment investigations.  The conference will also provide news and material on several legal topics relevant to employers, including ADA, Wage and Hour, Workers’ Comp Reform, FLSA and Immigration. Register today at www.capital.org/triadlaw.

The EEOC’s 5 Warnings about Medical Leaves and the ADA

Tuesday, October 11th, 2011

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2011 Triad Employment Law Update.

Leave of absence as a reasonable accommodation under the Americans with Disabilities Act is a smokin’ hot subject these days, 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 U.S. Equal Employment Opportunity Commission (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.

CAI’s 2011 Triad Employment Law Update, scheduled for November 9 at the Koury Center in Greensboro, will provide additional information for staying compliant with FMLA and ADA regulations.  The conference will also provide news and material on several legal topics relevant to employers, including Wage and Hour, Workers’ Comp Reform, FLSA and Immigration. Register today at www.capital.org/triadlaw.

“ALL OF YOUR BASE ARE BELONG TO US. RESISTANCE IS FUTILE.”

Thursday, September 30th, 2010

By Robin E. Shea, Attorney, Constangy, Brooks & Smith, LLP

The U.S. Department of Labor is planning to impose new “affirmative action” requirements on employers, requiring them to develop “plans” to address workplace safety, equal employment opportunity, and wage and hour/employee classification issues.

For the most part, these requirements – called “Plan/Prevent/Protect” – will not be limited to federal contractors but will apply to all employers covered by the relevant laws.

The proposed changes are dramatic, and shift from what the DOL calls “catch me if you can” (in other words, employer is presumed compliant unless the government is given reason to believe otherwise) to “Plan/Prevent/Protect” (in other words, employer is presumed guilty unless it can prove otherwise). “[E]mployers and other regulated entities will be asked to assemble plans, create processes, and designate people charged with achieving compliance,” says the DOL, and “compliance will be non-negotiable . . . .” (Emphasis added.)

Here are the basic guidelines of “Plan/Prevent/Protect”:

The “Plan” component will require employers to enlist employees in “identifying and remediating risks of legal violations and other risks to workers.” The plans must be made available to the workers “so they can fully understand them and help to monitor their implementation.”

The “Prevent” component will require employers to “thoroughly and completely implement the plan in a manner that prevents legal violations. . . . The employer . . . cannot draft a plan and then put it on a shelf. The plan must be fully implemented . . . .”

The “Protect” component will require employers to ensure “that the plan’s objectives are met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.”

In the context of compliance with the Fair Labor Standards Act, Plan/Prevent/Protect will require that employers provide information to employees about how their pay is calculated, and prepare a “classification analysis” with respect to any job that it treats as FLSA-exempt. Of course, the analysis will have to be made available to the employees and the government.

The DOL will issue proposed regulations on Plan/Prevent/Protect at some point in the future.

Robin Shea will be a presenter at CAI’s Triad Employment Law Update on Wednesday, Nov. 3, 2010 at the Koury Center in Greensboro, N.C. For additional information on the conference, visit www.capital.org/triadlaw.

Photo Source: my.aegean.gr