Just last week I was complaining about the lack of guidance for employers dealing with employees who blame their bad behavior on a disability. Now a fired financial adviser is asking the Supreme Court to weigh in on the issue.
Morgan Stanley fired Ryan Foley from his job as a financial analyst when he removed computer hardware from the office without permission and then denied having done so. Foley sued saying that he was experiencing his first ever bipolar episode and that the company should literally be more accommodating. The court granted summary judgment for Morgan Stanley, Foley appealed, and the 11th Circuit Court of Appeals affirmed.
Now Foley is asking the U.S. Supreme Court to take the case up on a writ. Will it do so? Unlikely. The Court receives thousands of writ petitions and grants only around 2%. Plus, they usually like to see more detailed analysis by the appellate courts before they dive into an issue.
It would be nice if there was something definitive to guide employers dealing with employees who use disability as an excuse for inappropriate behavior. But unless the employees pose a tangible threat to their own health or safety or the health or safety of others, we have to keep waiting for that guidance.
Until then, employers need to proceed cautiously. At a minimum, this includes determining whether the employer is required to engage the employee in the interactive process and documenting the steps taken and the justification for taking them.
I’ve complained before about the lack of guidance for employers dealing with employees who attribute their bad behavior to a disability. The Ninth Circuit’s August 15, 2014 decision in Weaving v. City of Hillsboro (pdf) only adds to the confusion.
The City of Hillsboro, Oregon fired Weaving from his job as a police sergeant after an investigation determined that Weaving “created and fostered a hostile work environment for his subordinates and peers.” ["Hostile work environment" being used in this context to describe bullying and intimidation not related to membership in a protected category.] Weaving sued claiming that the City fired him because of a disability (ADHD). At trial, he recovered over $630,000 in damages. The City appealed and the appellate court reversed.
The court of appeal drew a distinction between being able to interact with others (which is a major life activity) and being able “to get along with others” (which presumably is not) . Distinguishing this case from precedents where the plaintiffs “were essentially housebound,” the majority concluded that Weaving was not substantially limited in his ability to interact with others. “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile work environment for their colleagues.”
A lengthy dissent argued that, even if the policy rationale made sense, the majority had failed to follow circuit precedent and had usurped the power of the jury to weigh the evidence. (Patrick Dorrian at Bloomberg BNA Employment Discrimination Report wrote a more detailed discussion of the case – with insight and analysis from yours truly – that you can access here (but you’ll need a subscription).)
The outcome probably would have been different under California law (which interprets “limits” and “life activities” more broadly).
Employers need to tread carefully in deciding whether or how to discipline employees who attribute their bad behavior to a disability. If judges can’t agree on what the law requires, we’re a long way from having a workable standard that employers can use to guide their decisions.
Of all the employment decisions employers make, none get litigated more often than termination decisions. To protect your company, review these questions before any termination.
- Does the employee have a contract of employment? If so, what does it say about grounds for termination?
- Has the employee acknowledged in writing that employment is terminable at will?
- Does the employer have any policies requiring it to take specific steps before termination? If so, has it taken those steps?
- Has the employee recently engaged in protected activity, such as complaining about discrimination, harassment, or some unethical or unlawful activity?
- Has the employee asked for an accommodation for a disability? Is there reason to believe that the reason for termination may be attributable to a disability?
- What is the reason for the termination?
- How strong is the evidence to support that reason?
- Has the issue been addressed with the employee? If so, is that documented?
- How long has the employee worked for the company?
- Does the employer plan to refill the position? If not, how will the former employee’s duties be covered?
- Is the employee in any protected category that is underrepresented within the organization?
- Has the employer considered less severe actions (warning, suspension, a cut in pay)?
- Has the employer dealt with similar issues in the past? If so, is this issue being handled consistently with the prior ones? If not, what’s the basis for treating this one differently?
- If the reason for termination is performance related, has the employee received performance evaluations that identify the problem?
- Has the employee received any awards or positive recognition?
- If the reason for termination is based on misconduct, has the employee been given a chance to tell his or her side of the story? Has the issue been investigated?
- Is there reason to believe that the employee has not received all the compensation and meal or rest breaks that applicable law requires?
- Does the person hold any other positions with the organization (such as being a corporate officer or director or trustee of a benefit plan)?
- If the employee challenges the decision, what grounds does the company think the employee will raise?
- Is there any particular reason why the decision may be perceived as unfair?
- Are there steps the company needs to take before termination to preserve client or customer relationships?
- Are there steps the company needs to take before termination to protect its information systems or confidential information?
- Is there any pending or threatened litigation that will require the employee’s involvement?
- Is there reason to be concerned that this employee may react violently?
The answers to these questions will help you determine if termination is appropriate and if you should take further steps, such as consulting experienced counsel, to protect your company.
I was at spin class a few weekends ago and was talking to one of my spin friends, a woman who was just returning to her work-outs after having a baby. I asked her how things were going at work. She told me that it was hard to leave at 5 pm to relieve the nanny, she felt resentment from some coworkers, and was concerned they were holding it against her that she had taken time off and now needed to work less than she had before.
As an employment lawyer I’ve lived this issue from both sides. I hear from employees (and their counsel) about the accommodations required by law and how my clients didn’t meet them. Then I hear from the employers who struggle to make those accommodations and then deal with the related fallout. It was with this dual perspective that my friend and I were able to have an honest conversation about the challenges facing both employers and employees. Here are some of my takeaways.
Rights for Pregnant Women and New Moms
- Pregnant women and new moms have lots of rights, including the right to take time off, the right to retain medical benefits, the right to reinstatement, and the right to lactation accommodation upon return.
- Many women work in places where they need to assert those rights, and they should. Employers who do not meet their legal obligations, do so at their own risk.
- Employers also need to ensure that requests for accommodation are met with empathy (as opposed to frustration) for the women who are entitled to them.
- Too many women face obstacles for just trying to take care of themselves. That isn’t fair.
Rights for Employees Who Cover for Them
- Often meeting the legal obligations is the easy part. The harder part is figuring out what an employer should do about the very real resentment that others feel for having to cover for pregnant women and new moms.
- We’ve all seen some pregnant women “do it all” and work 100% up to the minute they give birth. We’ve seen others answering emails and phone calls from the hospital.
- But we’ve also heard pregnant women blame mistakes on “pregnancy brain” and let others pick up the slack; take time off for medical reasons in places that appear to be more like a vacation; and pass off work priorities to colleagues who are already at or beyond capacity.
- Working with someone who is pregnant, or on maternity leave, or is working at limited capacity upon return, can put real pressure on the team. Many of those team members also have families and are struggling for balance.
- Yet, to acknowledge the reality of the inconvenience of accommodations and the resulting resentment is not only politically incorrect, it comes off as anti-woman and can create a risk of discrimination claims.
So getting back to my friend, what should she do given these dual realities? The suggestion I had was simple. I asked her if she had thanked the people who had covered for her. She thought it about it and said “probably not as much as I should have.”
When I saw her the next week at spin she told me that she had thought a lot about our conversation, and had made a conscious effort to thank everyone who had (and still was) helping her. She was met with a lot of warmth, and somehow, the resentment seems to have faded.
My main takeaway – there are two sides to this story and neither can be ignored. On the one hand, a little empathy and understanding is helpful when mixed in with meeting legal obligations. On the other hand, a little gratitude goes a long way.
Here at the California Employment Law Blog, we don’t talk that much about the unique requirements imposed on federal contractors. But our partner Ken Rosenberg has written an excellent summary of how the OFCCP has been turning up the heat on government contractors. Here it is (pdf).
Many employers allow employees to use their own personal cell phones for work. Some employers have BYOD (Bring Your Own Device) policies to address important issues such as confidentiality of employer data, privacy, and reimbursement. Other employers let employees use their phones but have not implemented such policies. Whether you have a BYOD policy or not, take note – California law now requires employers to reimburse employees for work-related calls and data usage.
The issue in a recent case, Cochran v. Schwan’s Home Service, Inc., was framed as follows: “Does an employer always have to reimburse an employee for the reasonable expense of the mandatory use of a personal cell phone, or is the reimbursement obligation limited to the situation in which the employee incurred an extra expense that he or she would not have otherwise incurred absent the job?”
The answer was direct: To be in compliance with California Labor Code Section 2802, “the employer must pay some reasonable percentage of the employee’s cell phone bill.”
The court rejected the argument that many employees had unlimited plans and did not incur extra expenses due to work-related calls. The court also rejected the argument that many employees had phones supplied and paid for by third parties like family members. Rather, to show liability, all the employee needs to do is “show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed.”
The court recognized that the issue of damages was more complicated, reversed the trial court’s decision denying class certification, and ordered the trial court to reconsider how such damages might be proved on a class wide basis with statistical sampling.
How should employers protect themselves from claims? Well, the tips we recommended last April still ring true including:
- A handbook policy about expense reimbursement listing non-obvious examples such as data plans and phone calls;
- A clear BYOD policy with reimbursement for a portion of the data plan; and
- An exit practice for departing employees to ensure all work related expenses have been submitted and reimbursed.
While the tips are the same, the stakes are now higher for employers who neglect to implement them.
Despite the popular saying, possession is not 9/10ths of the law. Judging by my desk, if anything is 9/10ths of the law, it’s documentation.
Lawyers are always asking their clients for documents. But in the real world (or so I’ve heard from people who claim to have been there), it’s not realistic to ask managers to document every conversation with an employee. So how should a manager decide which discussions to document? These six factors will help you decide.
- Is the employee using buzzwords? If there’s any mention of “discrimination,” “retaliation,” “harassment,” or the like, you’d better document it. I’ve talked about how the definition of “hostile work environment” has been stretched beyond recognition. But if it’s mentioned, better document that, too.
- Does the employee sound like he or she has been researching what the law is? Does the employee keep mentioning ”legal rights”? If employees even hint that they may be considering some sort of claim, you want to document what was said.
- Is the employee subject to pending or imminent corrective action or a layoff? Retaliation is an adverse action by the employer in reaction to protected activity by the employee. If some type of adverse action is or may be iminent, you will want documentation of what issues the employee raised and when.
- Is the employee’s performance or behavior getting worse? Managers don’t like delivering bad news. Who does? But if you’re seeing a trend in terms of worsening behavior, it’s best to document it at the start.
- Are accommodations for a disability being discussed? The law, especially in California, requires employers to engage employees seeking accommodation in an “interactive process.” Document it.
- Does this seem like the kind of thing you might need to remember details of a few months or years down the road? This is the catch-all. Savvy managers should have an idea of which discussions are most likely to become important later. If you don’t have that, err on the side of documenting.
It’s not unheard of for managers to be deposed about events or conversations that occurred five or more years earlier. Imagine the sense of relief when a discussion has become the subject of litigation and you find your notes of what was said all those years ago. You’ll definitely make your lawyers happier – which I think is a goal more people should strive for.
In the quest to expand liability for real and imagined violations of employment laws, and to find more and deeper pockets, the latest target for plaintiffs’ lawyers and unions is the “joint employer.” The joint employment concept is a decades-old doctrine that applies where two companies are so intertwined and jointly involved with the employment policies and the supervision of employees that both companies can be liable violating employment laws such as wage and hour, wrongful discharge, or discrimination. The application of “joint employment” can also vastly increase the pool of employees in class actions and for union organizing.
The newly constituted and highly politicized NLRB is currently reviewing its standards for finding “joint employers” in a case involving Browing Ferris Industries of California and a staffing agency. Employers fear that the Board will take a radical turn toward making joint employment much easier to establish.
On July 29, 2014, the NLRB’s general counsel ominously ruled that unfair labor practice charges can proceed against McDonald’s franchisees and the franchisor, McDonald’s Corp. as a joint employer. The Board is thus backing the SEIU, and the employee advocacy group Fast Food Forward, in an attempt to organize and raise wages for fast food restaurants around the country. The union hopes to get neutrality agreements from parent companies that will make it easier to organize one franchise store after another.
A spokesman for the International Franchise Association said, “Ruling that franchises are joint employers will be a devastating blow to…the franchise model.” This development could affect fast food restaurants, hotels, and convenience stores and other retailers in California. The NLRB’s aggressive stance is sure to be litigated in the courts, but look for other agencies and plaintiffs’ lawyers to be pressing the issue of “joint employment.”
The City of San Francisco is at it again. In addition to the already-mandated super-minimum wage, mandatory health insurance, and paid time off, Supervisor Erich Mar is now introducing the Retail Workers Bill of Rights to eliminate part-time and irregular schedules. He says in a San Francisco Chronicle editorial that the measure is needed to “protect the integrity of our neighborhoods.” The ordinance is backed by worker rights groups such as “Jobs With Justice” and “Young Workers United;” groups closely aligned with the city’s retail and hospitality unions. It would require that employers “offer additional hours to part-time employees before hiring more part-time employees”.
Thus, in a time of high unemployment, the City will be imposing a law that causes fewer jobs. According to Supervisor Mar, the measure “will create new protection for retail workers” who are currently “held hostage” by part-time schedules. This rhetoric, of course, ignores the fact that many employees (such as students, working mothers) prefer the flexibility of part-time schedules.
Worker rights groups and unions love these bills because part-time workers are more difficult to organize, and because imposing higher costs and less flexibility on non-union companies reduces competition for unionized firms. Mar admits that his ordinance is aimed at “our largest retail corporations like McDonald’s and Walmart” (read “non-union”). He says the measure is an “innovative way to address poverty and inequality,” but he offers little comfort to those displaced people who would have no job instead of a part-time job. Expect to see the Board of Supervisors voting on this proposed ordinance within the next few months.
For a comprehensive guide to San Franciso’s unique requirements for employers, check out this guide prepared by Tyreen Torner.
From the employer’s perspective, the only way to truly ”win” an employment case is to avoid it in the first place. We litigators love the thrill of gettting a judge, arbitrator, or jury to decide in our client’s favor. But it can be awfully expensive to get to that point. So without further ado, here are ten commandments for avoiding employment litigation in California.
I. Thou shalt pay employees for all hours worked and provide them their breaks. It’s hard to think of a large employer in California that hasn’t spent gobs of time and money litigating this issue.
II. Thou shalt not treat nonexempt employees as exempt. This is another wage and hour issue that has given rise to thousands of class action claims.
III. Thou shalt not treat employees as independent contractors. Multiple government agencies are reviewing this issue in an effort to collect unpaid taxes.
IV. Thou shalt engage disabled employees in the interactive process. This is one of the hot areas in employment litigation. Failure to comply is, by itself, a violation of the Fair Employment and Housing Act.
V. Thou shalt pay attention to the unique legal requirements of the localities thou operates in. Following federal law isn’t enough. Even following California law isn’t enough if you’re operating in a locality, like San Francisco, with its own requirements.
VI. Thou shalt train thy managers to comply with applicable laws. Having the best policies in the world won’t protect a company if its managers don’t know how to implement them or whom to turn to with issues. This is especially true for harassment training (which is mandatory in California for employers with 50 or more employees).
VII. Thou shalt properly document the steps thou takes. I completed an arbitration last week that, because an issue went up on appeal, took place four years after the decisions in question. Notes of key conversations are critical in these situations.
VIII. Thou shalt require employees to waive class actions and arbitrate disputes. The law is now clear in California that, with an appropriate arbitration agreement, you can require employees to waive their right to class-wide relief. There are still open issues regarding collective actions under California’s Private Attorney Generals Act, but protection against class actions can still be of great value.
IX. Thou shalt provide employees an up-to-date employee handbook.
X. Thou shalt stay up to date regarding ever-changing legal requirements. One way to do that is to subscribe to this blog.
Another way to avoid litigation is to consult an employment lawyer (like me or my colleagues) before making decisions that may result in litigation. It’s frustrating to see companies spend years and hundreds of thousands of dollars litigating issues that could have been avoided with a phone call. So next time you confront these issues, make the call!