Saturday, March 16, 2013

Hostility Toward Accommodation Shows Bias

The Americans with Disabilities Act of 1990 (ADA) requires that an employer provides their qualified employees with disabilities any reasonable accommodations, unless doing so would cause the employer undue hardship. That accommodation could be any " any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." Refusal to accommodate an employee, or terminating them for requesting an accommodation, can allow employees to bring a claim against their employer for an ADA violation. Termination based on pretext can also give rise to a valid claim for an ADA violation. Pretext occurs when an employer formulates a legitimate reason for termination, but the underlying and true reason was discriminatory. A way to establish pretext is to show that discriminatory comments were made by the key decision maker or those in a position to influence the decision maker.
In a recent case, Kelley v. Correctional Medical Services, Inc., Kelley (the employee) shattered her pelvis while horseback riding. (Click click to access the case) She required surgery, and took a leave of absence for six weeks. Upon her return, Kelley was under several medical restrictions which included using crutches for ambulation, not using her hands for lifting, and keeping squatting to a minimum. Kelley could lift, push, and pull objects as long as she remained seated. When she began to use a cane at work, her supervisor told her she was not allowed to do so without a proper doctor's note. In response, Kelley acquired the note. That was not the first time that her supervisor made it difficult for her to work after her injury and had often suggested that Kelley "was misrepresenting the extent of her injuries and that she would be unable to walk if she had truly fractured her pelvis." That was further affirmed when a member of management alerted Kelley that the supervisor had said she "wanted her gone."
On the night shift of October 17, 2008, Kelley was on vacation but was called in to work. She came in only to realize that her assignment was changed to the main clinic. The main clinic responded to "code blues" which required quick response time, and the lifting of stretchers. Unfamiliar with the responsibilities of the main clinic, and also wary of taking on the physical responsibility with her disability, she asked another nurse to switch with her. The nurse initially agreed, but then refused. The supervisor was soon called to resolve the issue between Kelley and the other nurse via speakerphone. After the conversation, Kelley was escorted off the premises by security per instruction of the supervisor who claimed that refusing to take the assignment qualified as insubordination. A written recommendation was submitted by the supervisor to her superiors, stating that Kelley should be fired for insubordination. They agreed and fired Kelley.
The court found the evidence to clearly establish that Kelley and her supervisor had a tense work relationship and often disagreed on her need for accommodations. Her supervisor was also repeatedly hostile towards any accommodation. The court stated that this behavior was "probative of a pretextual ground for terminating Kelley's employment." Her supervisors comments went beyond mere remarks or comments and were actually discriminatory. The night of October 17 could be views as "the culmination of this history of disability-based conflict." The termination of Kelley was not because she was insubordinate, but rather due to her supervisor using a convenient excuse to rid herself of an employee she thought to be annoying. The court stated that an employer cannot use insubordination to mask retaliation for requesting a reasonable accommodation and vacated the finding of summary judgment in favor of the employee. The case has been remanded.

Wednesday, March 13, 2013

Harassment Based On National Origin

The EEOC defines national origin discrimination as discrimination that "involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not)." Harassment, which is a form of unlawful discrimination, based on national origin is unlawful when it is "so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted)." This is enforced under Title VII of the Civil Rights Act of 1964. 
In a recent case from the First Circuit, Zayadeen v. Abbott Molecular Inc. (click here for access), the Court determined that an employee was able to bring a claim for racial and national origin discrimination against his employer. Zayadeen was born in Jordan and of Arab descent. His fellow employees, including one who later was promoted to a supervisory position, frequently called him "Borat" based on the film of the same name. Other employees were also encouraged to call Zayadeen by the name "Borat" as well. The name calling occurred in public, and in the presence of at least one employee from the Human Resources Department.
Other isolated incidents included being told: "Well, I don't want to be sitting home watching the news and I see you stuck to the front of an Israeli tank;" and "We let you in this country, and we gave you a Green Card. The least you can do is speak English." Zayadeen was also told that the Arabic language was a "dirty language" and that his Jordanian food looked like dog food. Although Zayadeen never complained directly to his supervisors, he did ask the employees to cease the name calling. A supervisor overheard this and took no steps to stop it or prevent it.
In June 2009, Zayadeen took an approved personal leave of absence from July 13, 2009 through November 15, 2009. His supervisor stated that he needed to fill that position immediately, and began the process of posting the position before Zayadeen went on leave. When Zayadeen tried to return towards the end of August, he was told his position was no longer available. However, a replacement was not hired until two days prior to Zaydeen's leave of absence being up and did not begin to work until the end of December. Zayadeen extended his leave for a total of one year, and was officially separated from the company when his leave expired.
Based on the evidence, the court determined that:
(1) A reasonable jury could conclude that Zayadeen was harassed based on his Jordanian national origin.
(2) A reasonable jury could also conclude that Zayadeen was harassed because of his Arab descent.
(3) A jury could reasonably conclude that routinely being so ridiculed, mostly in the presence of co-workers and superiors, altered the conditions of Zayadeen's employment.
(4) A reasonable jury could infer that because the supervisor who granted Zayadeen's leave had previously harassed him on account of his race and national origin, the supervisor was motivated by those same discriminatory impulses when deciding whether Zayadeen could return to his job.
The case will now be proceeding to trial.

Monday, March 11, 2013

Parents Allowed FMLA Leave For Adult Children

The Wage and Hour Division (WHD) issued an administrator's interpretation which clarified "the definition of 'son or daughter' under Section 101(12) of the Family and Medical Leave Act" (FMLA). (Click here for access.) The FMLA entitles eligible employees to 12 work weeks of unpaid, job protected leave to care for children with a serious health condition, either under 18 years of age or over 18 and unable to care for themselves due to a mental or physical disability. A parent caring for a seriously injured or ill military service-member is entitled to 26 work weeks of FMLA leave. The WHD interpretation clarifies that a parent caring for a service-member may take leave for subsequent years as well, since their injuries may last longer than a 12-month period.

There are four requirements that must be met in order for a parent to be entitled to take leave to care for a child. Those four requirements are that the child (1) have a disability as defined by the Americans with Disabilities Act of 1990, (2) be incapable of caring for him or herself due to that disability, (3) have a serious health condition, and (4) be in need of care because of that serious health condition. The WHD has made it clear that the age of the onset of a disability is irrelevant in the determination of a parent's entitlement to FMLA protected leave. The WHD looked to the purpose of the FMLA, WHD’s enforcement experience, and the example in the preamble to the 2008 FMLA Final Rule. This conclusion was also drawn by looking at the legislative history of the FMLA, which supported the contention that "Congress recognized that a disabled child’s need for care from a parent may not end when the child reaches the age of 18." Their reasoning for that conclusion was "that adults who are unable to care for themselves because of a disability have 'the same compelling need for parental care' as children under the age of 18."

To learn more about your rights to leave under the FMLA, visit the Department of Labor's website:

Friday, March 8, 2013

EEOC Strategic Enforcement Plan 2013

In December, the EEOC approved a Strategic Enforcement Plan (SEP) for 2013 which established national priorities, and integrated all the components of EEOC's private, public and federal sector enforcement. It is a targeted approach by focusing on specific priorities,  and an integrated approach by using all of the EEOC's resources and staff to collaboratively achieve their goal of reducing discrimination in the workplace. The SEP will also hold the Commission, General Counsel, agency leadership, and agency staff accountable for following through with the expectations set forth in the document.

The six priorities established were: (1) eliminating barriers in recruitment and hiring; (2) protecting immigrant, migrant and other vulnerable workers; (3) addressing emerging and developing issues; (4) enforcing equal pay laws; (5) preserving access to the legal system; and (6) preventing harassment through systemic enforcement and targeted outreach. The SEP focuses its attention on eliminating discriminatory practices in the workplace. It is no secret that there are certain employers who discriminate in their hiring practices, and have been able to conceal these practices from the public. Hopefully, the SEP will encourage employers to re-evaluate their hiring criteria in order to avoid discrimination claims being brought up against them. Despite having a new plan, the EEOC will also continue to utilize previous plans and meet the commitments set forth in those plans. The 2013 SEP will have a comprehensive approach, encompassing old and new principles in order to afford more protection to the workers of this nation. 

For access to the entire Strategic Enforcement Plan, click here.

Wednesday, March 6, 2013

Stopping Workplace Bullying

What exactly is "workplace bullying"? It can take many forms, such as yelling, tormenting, teasing and taunting. The most common form of workplace bullying is verbal abuse, followed by bullying through social media. This issue is on the rise and states have started to consider passing legislation to help employees sue for harassment when there are damages. 

An article in Komo News reported that over twelve states have already considered anti-bullying policies in response to the growing amount of incidents being cited. (Click here to access) Fifty-six percent of companies have already implemented some sort of anti-bullying policy into their code of conduct or handbook. Advocacy groups are urging other states to follow suit, hoping for an eventual nationwide reform of how workplace bullying is addressed.

If you believe you are being bullied at work, do not hesitate to check your employee handbook for a policy against bullying. If your employer has not yet implemented a policy, contact a local employment law attorney to find out if your state has a policy.

Tuesday, March 5, 2013

Employment Protection for Domestic Violence Victims

New York State has recently introduced two bills related to employment protection for victims of domestic violence. The Senate Bill to the entitlement to unpaid leave of absence for victims of domestic violence." This bill would grant victims 90 days on unpaid leave to address the issue. (Click here to access) The victim's job and current position would be protected. The definition of a "victim of domestic violence" in this bill is taken from the Family Court Act. The bill also uses the definition of a "victim of a sex offense" from the Penal Law.

The second bill, the Assembly Bill, "prohibits employers from discriminating against victims of domestic violence." (Click here to access) It further states that it "shall be unlawful discriminatory practice" for employers to terminate, discriminate or refuse to hire an individual based on their status as a victim of domestic violence. This bill uses the Social Services Law definition of a "victim of domestic violence." The Assembly Bill advanced to Third Reading on March 1st, where the bill will either be passed or defeated.

These bills have procedures comparable to the Family Medical Leave Act's, except they apply specifically to victims of domestic violence. Passage of one of these bills would be a step in the proper direction for employment and labor law.

Thursday, February 28, 2013

Exotic Dancer's Are Employees, Not Independent Contractors

After a seven year legal battle, the Supreme Court of Kansas ruled that exotic dancers were employees rather than independent contractors. The court's reasoning in the case, Milano’s v. Kansas Department of Labor Contributions Unit, was based on the amount of control the establishments exercised over their dancers. The club, in this case, forced the exotic dancers pay rental fees for the stage and other services, mandated how much the dancers could charge for services, governed how they could conduct themselves during work hours, and they had to click in and out of their shifts. If the exotic dancers violated any of the rules or conditions they could be subject to fines or termination. The court stated in their opinion that, "ample substantial competent evidence in the record before us demonstrates that Milano’s possessed such a right of control over the dancers at Club Orleans,” to consider them employees rather than independent contractors. Following the court's decision, dancers may now receive unemployment benefits if they are fired, and the clubs must contribute towards the state funds that pay those benefits.
You can find guidance to help you determine if a worker is an employee or a contractor on the IRS website by clicking here.

Tuesday, February 26, 2013

Disability Does Not Mean Job Security

In 2010, the Americans with Disabilities Act (ADA) amended their definition of "disability." May 24, 2011 those amendments went in to effect. The Equal Employment Opportunity Commission has a fact sheet on the final regulations which can be access by clicking here.  According to the Fact Sheet, Congress has "made it easier for [individuals] seeking protection under the ADA to establish that he or she has a disability." An individual can qualify as "disabled" by meeting one of three prongs: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record (or past history) of such an impairment; or (3) being regarded as having a disability.
Despite this expansion of the definition, employees may still be fired for not being able to perform their job functions if accommodations are unavailable. The ADA Amendments Act (ADAAA) clearly states that an employer need not provide an accommodation if only the "regarded as" prong is met. An employee can be entitled to accommodations if they fall under both the first prong and the second prong, or "regarded as" coupled with one or both of the other two prongs. Being "regarded as" disabled alone will not entitle you for a reasonable accommodation by your employer.
The ADA is not a safeguard from termination for disabled employees when they cannot perform their tasks. That is the stance of the appeals court in Lawler v. Montblanc North America, L.L.C.  [which can be accessed by clicking here.] In that case decided last month, the employee (Lawler) took an extended leave of absence after being diagnosed with arthritis and sustaining injuries stemming from her condition. Her employer, Montblanc, contacted her doctor and asked if there were any accommodations they could provide so that she could return to performing her duties. Her doctor provided no accommodations for the employer. Since Lawler could not perform the necessary tasks while disabled, and her doctor offered no reasonable accommodations for her to return, her employment was terminated. The employer prevailed in this case because Lawler failed to prove that she could competently perform the duties necessary to hold her position, with or without any reasonable accommodation. Had Lawler been able to work, perhaps with some type of accommodation recommended by her doctor, then it may have been a discriminatory termination based on her disability.
Be aware of your protection under the ADAAA and the EEOC Regulations by clicking here.

Sunday, February 17, 2013

Facebook With Care

Hopefully most of us realize that we need to be careful with what we post on Facebook.  That is especially true if you "friend" your co-workers or boss. If you do mix work with Facebook that carelessly posted status or photo could come back to haunt you. It could even cost you your job and defeat your wrongful firing lawsuit.
In a recent case, Lineberry v. Richards, a nurse (Lineberry) requested time off from the hospital she worked at due to severe lower back pain. Her FMLA leave was granted. Shortly into her leave, she took a pre-planned vacation to Mexico and posted photos of her stay on her FaceBook page. These photos showcased her in positions that would be painful for someone experiencing severe lower back pain. When her co-workers saw the photos, they complained to their supervisor (Richards). The hospital then began an investigation, in the course of which they discovered that Lineberry had lied to them about the circumstances of the FMLA leave. The investigation concluded with Lineberry being terminated after her leave. Lineberry then sued Richards and other defendants alleging an FMLA violation. The defendant's for summary judgment, which was granted and the lawsuit was dismissed. 
The FMLA provides covered employees with up to 12 weeks of leave (more for those caring for service members) for certain family and medical reasons. If you take FMLA leave, it is not to be treated as a 'free pass' or a vacation and it should not be abused.  Misuse of you FMLA leave could lead to termination of your employment.
  1. Do not lie to your employer when you request leave under the FMLA.
  2. Do not post incriminating photographs on your FaceBook page.
To take a closer look at the Lineberry v. Richards case, click here.

Thursday, February 14, 2013

Happy 20th Anniversary FMLA

The United States is looking out for its service men and women once again. Military families now have even more protection afforded to them under the Family Medical Leave Act (FMLA). Although the Act has twice been expanded to accommodate military personnel and their loved ones, it has once again been amended for them. Family members of service men and women will now receive an additional 14 weeks of job-protected time off to care for injured service members and deal with other deployment related issues that may arise. Furthermore, airline flight crew employees, due to their work schedules, will receive greater access to the FMLA benefits. Military families can have some stress eased knowing that the original 12 guaranteed work weeks have now been increased to 26 weeks. This will allow family members to more adequately care for their beloved service members without having the added worries of maintaining employment.

To read more about this FMLA Final Rule, click here