LEGAL INSIGHTS

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Signs That Employees Will Lose Their Discrimination Case

In my experience as a manager before going to law school and in my practice as an management-side employment lawyer, many discharged employees fail to accept any responsibility for the discharge.   How many times has a friend told you, “I was let go for poor performance, and, you know, they were right.”  Instead, the employees often jump to the conclusion that their age, race, age, sex, disability, or other protected status was the cause of the discharge.

Robin E. Shea has written an excellent post on her Employment & Labor Insider blog that outlines nine signs an employee will lose a age discrimination lawsuit.   Many of her signs, which apply to more than just age claims, go to the issue of why, despite the employee’s mistaken beliefs, the discharge was lawful.   These include such truisms as:

  • The actions of some employees actually warrant discharge;
  • Not all unfair treatment is unlawful; and
  • Discharged employees rarely have all the facts.

I read a lot of information from agencies such as the EEOC, DOL, and NLRB designed to educate employees about their rights under the law.   I applaud those efforts.   But I would like to see more information like that discussed by Robin Shea so that employees get more of a balanced view of the law.

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How to Implement Your Social Media Policy

Maria Ogneva from Yammer, an internal social network product for companies, recently wrote an article highlighting several tips on getting employees to buy-into your social media policy.  I especially like her focus on educating, empowering, and teaching employees WIIFM (“What’s In It For Me”) rather than on disciplining them:

The best way to ensure buy-in to your social media policy is not through threat of disciplinary action.  Rather, it’s by providing education and resources, and building the right processes.

She also included in her article an outstanding video on the topic prepared by, of all things, the Department of Justice in Victoria, Australia.  Check it out!

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Tips for Using Social-Networking Sites to Screen Applicants

Molly DiBianca recently wrote a helpful 3-part series on The Delaware Employment Law Blog regarding tips for employers to follow when using Facebook or other social-networking sites to screen applicants.  Here are a few of her key suggestions:

  • Do not try to gain access to an applicant’s profile directly through tactics such as asking a friend of the applicant to show you the applicant’s profile.
  • Develop a written checklist of key things to search for.  The list should include (a) key things about an applicant that would give you concern about the applicant, such as the the use of hate language or promoting the use of illegal drugs, and (b) key things that you would like about an applicant, such as authoring a well-written blog.
  • Have someone not involved in the hiring decision perform the actual search for items on the list.  This insulates the decision maker from learning things about the applicant’s protected status such as his or her race.  It makes it much easier to defend against a claim that a decision not to hire was because of an applicant’s protected status when the decision maker was unaware of that status!

Molly’s tips regarding having a checklist and having a non-decision maker perform the search apply equally to employers performing general internet searches about applicants.

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New Washington Law Permits Preferences for Veterans

Governor Gregoire just signed into law the Veterans Preference in Employment Act.  Under the new law, private employers are now permitted to establish a preference for veterans.  The preference applies to:

. . . honorably discharged soldiers, sailors, and marines who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon has been awarded, and their widows or widowers, may be preferred for employment. Spouses of honorably discharged veterans who have a service connected permanent and total disability . . .  .

The law does not require employers to establish a preference, but simply permits it without the preference being a violation of any local or state equal employment opportunity law.

Any employer who is going to establish a preference for veterans should consider revising their equal employment policy if it provides, as many do, that the employer does not discriminate on the basis of veteran status.   Depending on how a particular policy is worded, one simple way around this is to add the word “unlawfully” to the sentence so that instead of saying “do not discriminate” because of . . . veterans status,” the sentence says “do not unlawfully discriminate . . . .

 The new law, which can be found here, goes into effect 90 days after the legislature adjourns.

The new law, which can be found here, goes into effect 90 days after adjournment of the legislature.

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Independent Contractor Issues Continue to Plague “Employers”

The ABA Journal published an article this month by Susan A. Berson concerning increased scrutiny by the IRS and DOL regarding classification of workers as independent contractors.

I strongly agree with the recommendations in the article regarding business auditing use of independent contractors:

We recommend businesses conduct a comprehensive audit of the written independent contractor agreements in place,” Idalski says. “Provisions covering the day-to-day operations, who does what, who’s in charge, equipment, policies and procedures should be included.

To that suggestion I would add that Washington employers must also look to the different tests under state law for whether someone is an independent contractor as well as what obligations the business has to toward an independent contractor.

For example, the Washington legislature defined a “worker” for purposes of industrial insurance to include independent contractors when the essence of the contract is for personal labor.  As a result, under some circumstances, Washington businesses are required to make industrial insurance contributions on behalf of workers even though they are independent contractors.

This is a complex area of the law, but the consequences of misclassifying employees as independent contractors or failing to make required contributions for covered workers can be extremely costly.

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New Pattern Jury Instructions

The entire chapter on pattern jury instructions for state employment cases was just updated.  Pattern instructions are templates used by lawyers and judges to draft instructions to be read to the jury.  The instructions tell the jury what an employee has to prove for each type of employment claim and, where applicable, employer defenses to such claims.

The instructions also include a short description, which is not read to the jury, about the statutes and relevant case law involved in each type of employment claim.

In addition to their use at trial, the instructions can be used by managers, supervisors, and HR professionals as a concise summary of the different types of employment claims employees can bring, the elements employees have to prove to win, employer defenses, and relevant case law.

The instructions can also provide employers involved in litigation an outline of what their attorneys are trying to prove or disprove to improve better communication about litigation strategy.  The instructions can be found at Part XVI, Chapter 330 here.

Photo by ElvertBarnes from Flickr.

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National Labor Relations Board Expands Definition of Concerted Activity

A company recently implemented a new casual dress rule requiring that shirts be tucked in.  While waiting for a sales meeting to begin, one salesman asked the Vice President of Sales about the new policy.  Another salesman then made several statements to the VP including “It [the rule] is pretty restrictive.  You know, I might not want to tuck in my shirt;” “I didn’t sign up for this crap”; and “I don’t need the money.”  The VP asked the salesman to discuss the rule with him later, but the salesman persisted  By the end of the discussion, seven or eight sales reps were watching.  The second salesman was later given a written warning for arguing with the VP.

In Wyndham Resort Development Corp., the NLRB concluded that the warning was unlawful because the salesman was disciplined for engaging in protected concerted activity.   Historically, “concerted activity” has required proof that the employee was not acting solely on his or her own behalf, but “with or on the authority of other employees.”

As described by dissenting Member Hayes, what is new about this case is that the Board is  “conflating the concepts of group setting and group complaints.”   Now, the Board apparently extends the cloak of protected concerted activity to cover any complaint about working conditions merely because the complaint is voiced within earshot of fellow employees.

This protection of concerted activity applies to both union and non-union workplaces.

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Washington Court Addresses When an Accommodation is Reasonable

The Washington Court of Appeals recently addressed what constitutes a “reasonable” accommodation.  Frisino v. Seattle School Dist. No. 1.   Ms. Frisino, a teacher, took a leave of absence because of her sensitivity to airborne irritants in the classroom.  The parties agreed Ms. Frisino had a disability, and the district took several steps to accommodate her — such as remediating the classroom to remove the mold.

The Court of Appeals held that an issue of fact existed concerning whether the district’s efforts constituted a “reasonable accommodation” because of evidence suggesting those efforts were not effective in removing the airborne irritants.   For example, Ms. Frisino testified that she visited the “clean” classroom and thought airborne mold spores might not be contained by plastic she saw taped over a hole where ceiling tiles had been removed.

The Court of Appeals  reasoned that the term “reasonable” accommodation means an accommodation that is effective in removing the workplace barrier that is preventing the employee from returning to work.

The United States Supreme Court takes a different view.  In US Air v. Barnett, the Supreme Court held that, under the ADA, the tern “accommodation,” not “reasonable,” encompasses whether a workplace modification is effective.   The term “reasonable,” the Supreme Court reasoned means well . . .  “reasonable.”   So much for clarification.

The primary significance of the how the terms are defined is what the employee and employer have to prove if a lawsuit is filed.

From a practical standpoint, Frisino provides provides little clarification for employers on what exactly is a “reasonable accommodation.”  But whatever its exact meaning, the case makes clear that courts will carefully scrutinize not only whether an employer took steps to try to accommodate an employee with a disability,  but whether those steps were actually effective  in removing workplace barriers.

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Final ADAAA Regulations Issued

The EEOC as finally released the new ADAAA regulations to the public.   You can get a copy of the new regulations here.   The regulations will be published in the Federal Register on Friday.

We are still analyzing the  regulations, but one significant change from  the proposed rule is  the inclusion of nine rules of construction for deciding whether something is a disability.  The rules are as follows:

  • The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.
  • An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.
  • The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.
  • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA.
  • The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis. Nothing in this paragraph is intended, however, to prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.
  • The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.
  • The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage in § 1630.15(f) does not apply to the definition of “disability” under paragraphs (g)(1)(i) (the “actual disability” prong) or (g)(1)(ii) (the “record of” prong) of this section. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.

The ADA applies to all employers with least 15 employees.   Washington employers who have at least 8 employees must analyze disability issues under Washington’s Law Against Discrimination, as well as under the ADA if they have at least 15 employees, which has a definition of disability different from that under the ADA.