Workplace Policies and Processes

By Kelsey P. Montgomery and Dawn Reddy Solowey

Seyfarth Synopsis:  Telling African-American employees “that if they had ‘n—– rigged’ the fence, they would be fired” may be enough, standing alone, to state a hostile work environment claim.  The Third Circuit clarifies that “severe or pervasive” discrimination is the correct standard for hostile work environment claims.   

The Third Circuit recently held that a single word or incident, if severe enough, may create an actionable hostile work environment claim. The Court clarified that in hostile work environment cases, the proper legal standard is not whether the objectionable conduct in question is “pervasive and regular,” but rather whether it is “severe or pervasive.”

The plaintiffs in Castleberry v. STI Group, both African-American men, are pipeline workers who worked for defendants as general laborers on an all-white crew.  In their complaint, they alleged that despite having more experience than their white counterparts, the plaintiffs were assigned to clean around the pipelines, but were not permitted to work directly on them.  Moreover, on multiple occasions, a colleague anonymously wrote “don’t be black on the right of way” on the pipeline workers’ daily sign-in sheets.  The plaintiffs alleged that after working on a fence removal project, a supervisor told them “that if they had ‘n—– rigged’ the fence, they would be fired.”  They reported this final incident, and were terminated two weeks later without explanation.  The complaint alleged that although they were briefly rehired, the defendants’ terminated their employment a second time, claiming a “lack of work.”

The plaintiffs subsequently brought harassment, discrimination, and retaliation claims against the defendants. At the outset of the case, the defendants moved to dismiss on the grounds that a single, isolated incident could not constitute a hostile work environment.  The trial court agreed, dismissing the plaintiffs’ hostile environment claims, holding that a single use of a racial slur was not “pervasive and regular” discrimination.

On appeal, the Third Circuit reversed. After acknowledging inconsistent precedent in the Circuit, the appellate court clarified that “severe or pervasive” was the correct standard for hostile work environment claims – not “pervasive and regular” or even “severe and pervasive.”  The Third Circuit explained:

Indeed, the distinction means that severity and pervasiveness are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.

The Third Circuit relied on U.S. Supreme Court precedent to support the “severe or pervasive” standard.

Having clarified the hostile work environment standard, the Court in Castleberry found that “it is clear that one such instance [of a supervisor using the ‘n-word’] can suffice to state a claim.”  Moreover, as alleged here, the plaintiffs’ supervisor threatened to terminate their employment (and then actually did) at the same time that he used the derogatory racial epithet.  Thus, the Court held that this allegation was sufficiently severe to state a hostile work environment claim.

Notably, the Court also found that the plaintiffs’ allegations could have alternatively satisfied the “pervasive” part of the clarified standard; not only did their supervisor allegedly make the racially derogatory comment, but they were also allegedly exposed to racial hostility when on several occasions their sign-in sheets bore discriminatory comments and because they were relegated to menial tasks while their white colleagues were allowed to perform more complex work.

Few words are more malicious than the “n-word,” but employers should be alert to the fact that the Third Circuit’s reasoning would logically extend to isolated discriminatory remarks about religion, gender, or any other protected classification. It is, therefore, imperative that employers maintain strong anti-discrimination policies, require and encourage employees to report discrimination, and promptly investigate and remediate any alleged discriminatory remark or other conduct, even if the allegation is of a single remark or incident.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

 

 

 

 

 

Seyfarth Synopsis: Seyfarth’s Chicago Office hosted its Third Quarter Breakfast Briefing — an extremely well attended event. 

On Tuesday, September 12, 2017, five attorneys from our Chicago Labor and Employment team presented to a packed house of guests.  The group offered an overview of, and their insights on, new and pending legislation impacting Illinois employers, generally, and those within the Chicago Metropolitan area, more specifically.  The topics included Kin Care, Amendments to the Illinois Human Rights Act, The Chicago and Cook County Minimum Wage Ordinances; and the Chicago and Cook County Paid Sick Leave Laws, among others.   As you can imagine, the audience had a lot of questions, which made for a very lively discussion.  Our thanks to all who were able to join us at the briefing.

Checkout the slides from the Breakfast Briefing.  Should you have questions on any of these topics, please contact your Seyfarth attorney.

Seyfarth’s next quarterly Breakfast Briefing will be held on Wednesday, December 13, 2017.  Hold the date and be on the lookout for further details.

By Tracy M. Billows and Megan P. Toth

Seyfarth Synopsis:  If your company provides parental leave benefits beyond what is required by law, it is important that the company’s policies and practices ensure male and female employees are being treated consistent with the prohibition of discrimination based on sex.

On August 30, 2017, the EEOC filed suit against Estée Lauder in the U.S. District Court for the Eastern District of Pennsylvania claiming that the cosmetic company discriminated against male employees by implementing a paid parental leave policy that provides lesser parental leave benefits to male employees than to female employees.  EEOC v. Estée Lauder Companies, Inc., No. 2:17-cv-03897-JP (E.D. PA)

The paid parental leave policy at issue in this case–which was implemented by Estée Lauder in 2013–provides “primary caregivers” six weeks of paid parental leave for child bonding and only offers “secondary caregivers” two weeks of paid leave for child bonding.  In addition, “primary caregivers” are also provided with flexible return-to-work benefits that are not similarly provided to “secondary caregivers.” On its face, this policy does not appear to provide different benefits to new mothers or female employees and new fathers or male employees; however, in practice, the company only allows male employees to receive “secondary caregiver” leave benefits under this policy.

This case arose when a male employee’s request for six weeks of child-bonding leave as the “primary caregiver” was denied and he was only allowed to take two weeks of bonding leave.  According to the lawsuit, the company told him that the “primary caregiver” designation only applied in “surrogacy situations.”  The EEOC claims that the practice of only allowing men to take two weeks of paid leave, while allowing women six weeks and flexible return-to-work benefits violates the Civil Rights Act of 1964 and the Equal Pay Act of 1963.

The EEOC has made it clear that addressing sex-based pay discrimination, including benefits such as paid leave, is a priority.  So it is not surprising that the agency has gone after one of the world’s leading cosmetic companies over this issue and this is probably not the last suit of its kind. With the rising corporate trend of providing generous parental leave benefits to employees, it is important companies who are following this trend to be mindful of their policies and potential claims of disparate treatment and/or disparate impact.

This topic has been on the horizon for some time now and the EEOC is starting to take action. If your company provides parental leave benefits beyond what is required by law, it is important that you review those policies and practices now to ensure male and female employees are being treated consistent with the prohibition of discrimination based on sex.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Jim Gehring

Seyfarth Synopsis:  The IRS has announced a program that allows employees to donate the value of their vacation, sick time, or other paid time off (“PTO”) for the relief of victims of Hurricane or Tropical Storm Harvey. 

Under IRS Notice 2017-48, issued on September 5, employers may contribute the value of the PTO contributed by their employees as Harvey relief to a non-profit organization and will be entitled to a deduction that may be treated as a business expense, rather than a charitable contribution, as long as the donations are specifically for the relief of Harvey victims and are made by January 1, 2019.

The employees who make the donations will not be entitled to take charitable deductions, but will not be subject to income or social security taxes on the amounts donated.

This differs from a traditional leave donation program, under which employees can donate a portion of their PTO to be used in kind by employees who were affected by a natural disaster such as Harvey. The temporary relief announced by the IRS allows the value of the donated PTO to be converted into cash charitable contributions, making it more widely useful, particularly in the case of employers who do not have employees located in the area affected by Harvey.

This relief is in addition to the IRS announcement last week that it was relaxing the rules governing the documentation of hardship withdrawals and loans from 401(k) plans for employees located in the areas affected by Harvey.  For more information on that relief, see our management alert.

Finally, some clients have expressed an interest is using their affiliated private foundations (as opposed to public charities such as the Red Cross) to make charitable contributions for the relief of Harvey victims, so that the relief can be targeted to their employees located in the affected areas. After opposing this practice in the past, the IRS has changed its position and will now allow a private foundation to give priority to employees of the sponsoring employer in making individual hardship relief grants, as long as certain safeguards are met.

If you any questions about actions that employers can take to help alleviate the hardships caused by Hurricane Harvey, please contact Jim Gehring at (312) 460-5856 or dgehring@seyfarth.com or Kelly Pointer at (713) 238-1841 or kpointer@seyfarth.com.

By Sara Eber Fowler

Seyfarth Synopsis: Last minute scheduling change?  Want to make sure you have enough employees on stand-by to cover shifts?  In a growing number of areas around the country, that will cost you. 

Fair scheduling laws – sometimes referred to as “predictive” or “predictable” scheduling – are popping up in city councils and state legislatures across the nation. Typically affecting larger retail employers or fast-food establishments, the laws often require employers to post work schedules with advance notice and mandate a specified amount of “predictability pay” – such as one hour of pay for every four hours of scheduled work – if changes are made to an employee’s schedule on short notice.  These laws also tend to require predictability pay if employees are “on call” but not called in to work, and some restrict the ability to schedule employees for closing and opening shifts (“clopenings”).

San Francisco was the first to pass a law of this kind, which went into effect in July 2015. But in the past year, more states and cities have passed – or are considering – similar legislation.  In June, Oregon became the first state to pass a fair scheduling law (effective July 2018).  Emeryville, CA and Seattle enacted scheduling laws that went into effect July 1, 2017, and New York City’s recently passed ordinance will be enforceable as of November 26, 2017.

Other states and municipalities (including Congress) have introduced predictable scheduling legislation, including Arizona, California, Chicago, Connecticut, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, and Washington, D.C. (Georgia, on the other hand, has taken the opposite approach, and passed a law that prohibits municipalities from passing a law that would require predictability pay.)

The theory behind these laws is that uncertainty in scheduling and last-minute scheduling changes wreak havoc on employees’ ability to plan for caregiving needs, hold second jobs or attend school, and plan their income. Several national retailers have already been forgoing “on-call” scheduling practices, irrespective of any legal mandate.

Retailers should be mindful of these new scheduling laws, particularly for those who have operations in affected jurisdictions. Bear in mind that each law varies.  In Seattle, for example, schedules must be posted 14 days in advance and employees are entitled to receive half-time pay for any shift they are “on-call” but not called to work.  New York City’s law, on the other hand, only requires schedules to be posted with 72 hours’ notice, but bans on-call scheduling altogether.

Many of the proposed and enacted laws also create an “interactive process” obligation – similar to the Americans with Disabilities Act – whereby employers are required to have a dialogue with employees about scheduling preferences and scheduling accommodation requests, and in some instances must grant such requests absent a bona fide business reason. They also generally prohibit retaliation against employees who request changes to their schedules.

Each statute also contains its own unique exceptions. Most do not require predictability pay if operational needs change due to natural disasters or other unforeseen changes, or if an employee requests a scheduling change, volunteers for a change, or swaps shifts.  Oregon’s law calls for the creation of a “voluntary standby list” of employees who may be called upon to work unexpected hours without receiving additional compensation.

Given the differentiation in these laws, employers with national retail operations should review their scheduling policies to ensure compliance with local laws and train management about the penalties associated with last-minute scheduling changes. For some, adopting a broad policy curbing on-call scheduling, providing advance notice of schedules, and creating voluntary “standby” lists may be helpful to comply with these varying laws with minimal interruption to business operations.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Christopher Im and Sharisse R. Deal

Seyfarth Synopsis: Private employers can face competing obligations when it comes to responding to employees’ expressive conduct. Employee rights may collide with employer obligations to maintain a safe and harassment-free work environment, not to mention the employer’s interest in maintaining productivity and avoiding adverse publicity. Here are some guiding principles.

“How’s work?” A common question, whether at a party, catching up with an old friend, or just as small talk. It is also a common topic of online conversation. It would be nice if work-related remarks were always positive, agreeable and civil, but, of course, they are not. The reality is that employees sometimes say offensive things about work, their employer, their co-workers, or a co-worker’s cherished political hero or ideals.

And what of the employee who attends a political rally—either as a protester or counter-protester—or does not attend, but merely posts or tweets an incendiary opinion about the event?

What is an employer’s recourse when such communications cross the line? Where is the line?

As a general rule, unless the employee is using company-owned equipment or systems, employers cannot police their employees’ expression. Various California statutes protect employees’ rights to engage in lawful, off-duty conduct (Lab. Code §§ 96, 98.6) and political activity (Lab. Code §§ 1102, 1103), to say nothing of the California constitutional right to privacy, which applies in both the public and private sectors. Meanwhile, the federal National Labor Relations Act prohibits employers from chilling employee participation in concerted activity with respect to their terms and conditions of employment.

Generally, as long as controversial comments and ideas are lawfully expressed, do not implicate a protected class (such as race, religion, gender), do not name or implicate the employer, and remain out of the workplace, they are none of the employer’s business.

The trouble starts when a controversial comment is not lawfully expressed, implicates a protected class, implicates the employer, or has a deleterious effect in the workplace. Competing against the employee rights set out above are the employer’s duties to prevent and correct harassment in the workplace and to provide a safe workplace. Failure to do so can lead to hostile work environment or retaliation claims, regardless of whether the harassment comes from a supervisor or a co-worker.

Not all offensive remarks will be cause for concern: to get from “how’s work?” to a hostile work environment claim, an employee’s comments must relate to a protected status and be sufficiently severe or pervasive to alter working conditions. But in todays’ highly charged political environment, many people look to their places of employment as the last bastion of civility and stability. Discussion of events, images, symbols, or social media memes concerning topics as varied as immigration, same-sex marriage, transgender rights, and the history of American slavery and its aftermath may, depending on the communication’s content and context, be freighted with racial or gender connotations.

For most people, perception is reality. Remarks or conduct that several years ago would not have raised an eyebrow may now lead to multiple disgruntled people in the HR office, seeking action. And while California employees are guaranteed privacy, the privacy right does not prevent an appropriate reaction from an employer in response to a public online posting, text message, or comment. As someone once said: “Freedom of speech does not mean freedom from consequences.”

There is no magic bullet to making sure your employees play nice. But there are several steps you can take to ensure that they know what will and will not be tolerated. You can set employee expectations by implementing or reminding them of your anti-harassment and anti-retaliation policy, your code of conduct, your “zero tolerance” policy regarding violence, your social media policy, and your rules concerning use of company internet and other electronic communication systems. We recommend that employers articulate a strong business purpose to justify any occasions when they must intrude on an employee’s privacy, and never intrude more than is necessary to serve that business purpose.

Interpretation of the laws around employee workplace rights and the intersection with employer duties to comply with anti-harassment and OSHA laws are constantly evolving, particularly with the ever-increasing use of social media. To help stay current, don’t hesitate to contact your favorite Seyfarth attorney.

 

By Brent I. Clark, Erin Dougherty Foley, and Craig B. Simonsen

Seyfarth Synopsis: DOT has withdrawn its rulemaking on safety sensitive positions in highway and rail transportation.

This week the U.S. Department of Transportation has withdrawn its March 10, 2016 Advance Notice of Proposed Rulemaking (ANPR) on the Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea (OSA). 82 Fed. Reg. 37038 (Aug. 8, 2017).

The News Release indicates that “the Agencies have determined not to issue a notice of proposed rulemaking at this time and believe that current safety programs and Federal Railroad Administration’s (FRA) rulemaking addressing fatigue risk management are the appropriate avenues to address OSA.”  Emphasis added.

The ANPR had been directed at individuals occupying “safety sensitive positions” in highway and rail transportation, and on its potential consequences for the safety of rail and highway transportation. The DOT’s Agencies, the Federal Motor Carrier Safety Administration (FMCSA) and the FRA, through the rulemaking, were requesting data and information from employers and the public concerning the prevalence of moderate-to-severe obstructive sleep apnea among those employees in those positions.

The DOT had defined obstructive sleep apnea as a “respiratory disorder characterized by a reduction or cessation of breathing during sleep. OSA is characterized by repeated episodes of upper airway collapse in the region of the upper throat (pharynx) that results in intermittent periods of partial airflow obstruction (hypopneas), complete airflow obstruction (apneas), and respiratory effort-related arousals from sleep (RERAs) in which affected individuals awaken partially and may experience gasping and choking as they struggle to breathe.”

The ANPR stated that risk factors for developing OSA included: obesity, male gender, advancing age, family history of OSA, large neck size, and an anatomically small oropharynx (throat). Additionally, OSA was associated with increased risk for other adverse health conditions such as: “hypertension (high blood pressure), diabetes, obesity, cardiac dysrhythmias (irregular heartbeat), myocardial infarction (heart attack), stroke, and sudden cardiac death.

The withdrawal of this rulemaking may save employers in these industries perhaps considerable efforts and costs, although familiarity with the ANPR and comments received on the rulemaking may be worthwhile.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Labor & Employment Teams.

 

By Anthony CalifanoAriel D. CudkowiczJohn Ayers-Mann, and Frederick T. Smith

Seyfarth Synopsis: On May 23, 2017, in Callaghan v. Darlington Fabrics Co., a Rhode Island Superior Court issued a unique decision regarding employer obligations to medical marijuana users.

The Judge who penned the decision began his analysis by quoting a 1967 lyric from The Beatles’ song “With A Little Help From My Friends”: “I get high with a little help from my friends.”  In the 32-page opinion followed this witty opening, the Court held that an employer’s refusal to hire an individual based on her medical marijuana use violated Rhode Island’s medical marijuana statute, and the employer’s conduct may have amounted to disability discrimination under the Rhode Island Civil Rights Act (“RICRA”).

The Plaintiff, Christine Callaghan, applied for a position as an intern with Darlington Fabrics.  During her interviews, she disclosed to the company that she used medical marijuana and would test positive for it in her pre-employment drug test.  The company refused to hire her.  Callaghan filed a complaint alleging disability discrimination under the RICRA and seeking a declaratory judgment that the company’s refusal to hire her based on her medical marijuana use violated the Hawkins-Slater Act–Rhode Island’s medical marijuana statute.  Like its counterparts in numerous other states, the Hawkins-Slater Act prohibits an employer from refusing to employ “a person solely for his or her status as a [medical marijuana] cardholder.”

The Court addressed two primary questions. The first question was whether the Hawkins-Slater Act creates a private right of action that allows an individual to file a lawsuit in court for alleged violations of the statute.  The second question was whether a refusal to hire an applicant based on medical marijuana use could amount to disability discrimination under the RICRA.  The Court answered yes to both questions.

Addressing the private right of action question, the Court acknowledged that the Hawkins-Slater Act does not contain any express language authorizing an individual to sue an employer for violation of the statute.  The Court also acknowledged the general principle against assuming that a private right of action exists when the legislature chose not to create one.  On the other hand, the Court also recognized the legal principle that a court should not attribute to the legislature an intent to enact a meaningless statute.  Ultimately, the Court concluded that the Hawkins-Slater Act would be meaningless if it does not allow a private person to sue an employer for violating the statute.  Thus, the Court held that an implied private right of action exists under the Hawkins-Slater Act, and the employer violated the law by refusing to hire Callaghan because of her medical marijuana use.  In so holding, the Court rejected the notion that there is a meaningful distinction between a medical marijuana “cardholder” and a medical marijuana “user.”  The Hawkins-Slater Act, according to the Court, protects medical marijuana cardholders who use marijuana because a physician has recommended it. The Court therefore granted a declaratory judgment in Callaghan’s favor.

As for Callaghan’s claim of disability discrimination under the RICRA, the employer moved for summary judgment on several grounds.  The company argued, relying on the Americans with Disabilities Act, that active drug use is not a disability. The Court rejected this argument, reasoning that the RICRA defines disability more broadly than the Americans with Disabilities Act.  It also reasoned that an individual must have a “debilitating medical condition” to qualify as a cardholder under the Hawkins-Slater Act.  Accordingly, the employer could have inferred that Callaghan was disabled, and thus, could have discriminated against her on that basis.

The Court also rejected the employer’s argument that Callaghan was not a “qualified individual” with a disability because she engaged in the use of illegal drugs.  The Court concluded that, unlike other disability discrimination laws, the RICRA does not protect only “qualified individuals” with disabilities, but rather all persons with disabilities.  Thus, the Court concluded that the employer’s defense was inapplicable to Callaghan’s claims.

Perhaps most notably, the Court rejected the employer’s argument that the federal Controlled Substances Act (“CSA”), which classifies marijuana as an illegal drug, preempts the Hawkins-Slater Act.  The Court reasoned that the CSA is not intended to preempt state law unless it is in positive conflict with the CSA.  Because the Hawkins-Slater Act does not require the employer to violate the CSA, the Court held that the CSA does not preempt the Hawkins-Slater Act.

In light of its conclusions, the Court denied the employer’s motion for summary judgment on Callaghan’s disability discrimination claim under the RICRA.  Callaghan did not more for summary judgment in her favor on this claim, but the Court observed that “but for [Callaghan’s] disability–which her physician has determined should be treated by medical marijuana–[Callaghan] seemingly would have been hired for the internship position.”

While the Callaghan decision is not binding on any other courts, it is noteworthy.  It goes against the weight of authority from courts in other states in its analysis of the interplay between medical marijuana and anti-discrimination laws.  More importantly, it does so in a way that could require many employers with operations in Rhode Island (and perhaps other states) to change their policies regarding the hiring and continued employment of medical marijuana users.  If appealed, will the decision hold up?  Will other courts in other states issue similar decisions?  Time will tell.

 

By Rachel Hoffer, John P. Phillips and Mahek Bhojani

Seyfarth Synopsis: In a recent win for employers, the Fifth Circuit clarified that opened-ended or unlimited requests to work from home are unreasonable under the Americans with Disabilities Act (“ADA”) and may be rejected during the interactive process. In addition, the Court instructed lower courts to give preference over other factors to the employer’s judgment about what constitutes the “essential functions” of a particular job.

In today’s hyper-connected world, with more and more workers seeking to telecommute, the EEOC and plaintiffs’ attorneys often take the position that working from home should always be a viable and obligatory accommodation under the ADA. Employers, especially those who allow limited telecommuting, often find themselves defending failure-to-accommodate claims after rejecting requests for unlimited telecommuting.  Fortunately for employers, the Fifth Circuit recently ruled that in most cases employers do not have an obligation to allow telecommuting as a reasonable accommodation.  In addition, the Court reaffirmed that, in determining what job functions are truly “essential,” an employer’s judgment takes precedence over all other factors.

This case makes clear that open-ended telecommuting is rarely required under the ADA, and it also reassures employers that it is their call which functions their jobs require. Because it’s up to employers to determine the essential functions of employees’ jobs, employers should take the time to reexamine their job descriptions, make sure they are up to date, and ensure that they accurately reflect the requirements of the job.  This exercise will help employers navigate the interactive process when employees seek reasonable accommodations, and will assist employers in arriving at fair, reasonable, and defensible resolutions of disability-related issues.

Case Background

In Credeur v. State of Louisiana, Renee Credeur, a former litigation attorney for the Office of Attorney General for the State of Louisiana (aka the Louisiana DOJ), brought suit against her employer for allegedly failing to accommodate her inability to work in the office following a kidney transplant, and for harassment and retaliation, under the ADA and the Louisiana Employment Discrimination Law.

In May 2010, Ms. Credeur underwent a kidney transplant and was granted an accommodation to work from home for approximately six months. She then returned to work in the office full time but three years later began experiencing complications.  Starting in October 2013 and continuing through March 2014, because of ongoing medical complications, she was granted permission to work from home.  In March 2014, the Louisiana DOJ told her that she would not be allowed to work from home indefinitely and that she was required to work in the office at least 3-4 hours a day.  She did not return to work, however, but instead applied for and was granted FMLA and additional unpaid leave from April through August 2014.  When her leave ran out in early August 2014, the Louisiana DOJ again asked Ms. Credeur to return to the office and notified her that litigation attorneys could not work from home indefinitely.

Ms. Credeur subsequently brought suit against the State of Louisiana, claiming that she should have been allowed to work from home indefinitely and as long as her doctors recommended it because working in the office was not an essential function of her job. The district court granted summary judgment for the State of Louisiana.  On appeal, the Fifth Circuit affirmed the district court’s decision, holding that the ADA did not require the employer to allow Ms. Credeur to work from home indefinitely.

The Court’s Analysis of the Failure-to-Accommodate Claim

The Fifth Circuit analyzed whether regular office attendance was an essential function of the litigation attorney’s job. Ms. Credeur argued it was not because she had successfully worked from home in the past, and that by crediting the DOJ’s statements and rejecting her testimony, the district court had engaged in impermissible credibility determinations at the summary-judgment stage. In reaching a contrary conclusion, the Court first reaffirmed that “regular work-site attendance is an essential function of most jobs.”  This is especially true, the Court continued, when the position is interactive and involves a significant degree of teamwork.

To determine what constitutes an essential function, the Court noted that the ADA itself mentions only the “employer’s judgment”—and any written job descriptions—on that issue.  The Court also referred to the EEOC’s ADA regulations, which identify several other factors, including the amount of time spent performing the particular function, the consequences of not performing it, and the work experience of past incumbents, among others.  Importantly for employers, the Court explained that “we must give greatest weight to the ‘employer’s judgment.’”  The Court further concluded that “[a]n employee’s unsupported testimony that she could perform her job functions from home” is insufficient to avoid summary judgment.

With respect to the specific position at issue, the Court reviewed contemporary emails from DOJ personnel and consistent testimony of Ms. Credeur’s supervisors to conclude that regular attendance in the office was an essential function of the litigation attorney job, that Ms. Credeur’s continued absence from the workplace created significant problems for her department and prevented her from executing her work effectively and efficiently, and that her request to work from home on an open-ended basis was not reasonable.

Takeaways for Employers

The Fifth Circuit’s decision joins an increasing number of courts holding that regular workplace attendance is an essential function. This decision also establishes that requests for unlimited or open-ended telecommuting in most cases is not a reasonable accommodation under the ADA.  In addition, the decision emphasizes that courts must give weight to the employer’s own judgment about what constitutes an essential job function.  While helpful, employers will not be able to take full advantage of the ruling unless they have accurate, up-to-date job descriptions that identify the essential functions of the job—including factors requiring regular attendance at the workplace.  Take this opportunity to examine and update your job descriptions.

 

By Hillary J. Massey and Craig B. Simonsen

Seyfarth Synopsis: While employees who have recently taken leave may be terminated for legitimate reasons, establishing a non-retaliatory termination can be challenging. The timing of the termination alone can support causation, and even a well thought out and justified termination may raise issues of fact that would prevent quick resolution in court. The 11th Circuit recently addressed such a case.

In Jones v. Gulf Coast Health Care of Delaware, LLC, No. 16-11142 (11th Cir. Apr. 19, 2017), Rodney Jones brought suit against his former employer, Accentia Health and Rehabilitation Center of Tampa Bay (Accentia), a long-term-care nursing facility, in Florida state court.  Jones alleged that in suspending and later terminating him, Accentia interfered with the exercise of his rights under the Family Medical Leave Act (FMLA) and retaliated against him for asserting those rights. Accentia removed the action to the United States District Court for the Middle District of Florida, and moved for summary judgment on both of Jones’s claims.

FMLA Leave

Jones, who was Activities Director for Accentia until he was fired in 2015, initially was approved for 12 weeks of FMLA leave for shoulder surgery. The day before Jones was scheduled to return to work, his doctor reported that he would not be able to return to work and resume regular physical activity for an additional 7 weeks. The doctor’s report also stated that Jones needed to continue physical therapy.

Jones wished to return to his job and asked his supervisor to allow him to return on light duty. His supervisor, however, refused to reinstate Jones until he submitted an unqualified fitness-for-duty certification.  Thus, Jones did not ask his doctor for a light-duty certification and instead requested additional time off from Accentia.  He was granted another 30 days of non-FMLA medical leave in order to complete his physical therapy.

Facebook Posts

While on non-FMLA medical leave, Jones twice visited Busch Gardens and went on a trip to St. Martin. Jones sent pictures of the trip to colleagues at Accentia and posted some on Facebook, including pictures of himself on the beach and in the ocean.

Jones returned to work two weeks before the date estimated by his doctor and met with his supervisor at the beginning of the day.  During the meeting, Jones presented his supervisor with a fitness-for-duty certification confirming that he could immediately resume his job.  His supervisor responded by showing Jones the photos from his Facebook page.

Termination

The supervisor then informed Jones that “corporate” believed, based on these Facebook posts, that Jones had been well enough to return to work at an earlier point. Jones was subsequently suspended and given an opportunity to respond to the charges in a letter, but he failed to do so and his employment was terminated.

District Court Judgment

Jones brought suit against Accentia, claiming that Accentia interfered with the exercise of his FMLA rights and retaliated against him for asserting those rights. In February 2016, the district court granted Accentia’s motion for summary judgment, holding that Jones had failed to establish a prima facie case of either interference or retaliation under the FMLA.  Jones appealed.

Appeal

The 11th Cir. affirmed the judgment of the district court with respect to Jones’s interference claim, but reversed the judgment with respect to his retaliation claim.

The 11th Cir. concluded there was no interference because Jones “likely” waived his FMLA right to reinstatement by taking an additional 30 days of leave, he should have submitted a fitness-for-duty certification by the end of his FMLA leave and there was no evidence that Accentia did not implement its FMLA certification policy in a uniform fashion.

As to retaliation, the 11th Cir. reversed, ruling that the short amount of time between Jones’ return from leave and his termination created a genuine issue of fact as to causation. The court also concluded there was a factual issue concerning pretext because Accentia offered shifting reasons for the termination.  Jones was told that he was being fired because he engaged in activities that demonstrated he could have returned to work earlier.  However, during litigation, Accentia offered additional and inconsistent reasons for the termination.

Employer Take-Away

Retaliation claims continue to permeate employment litigation, and often are difficult to defeat with a pretrial motion. When employees go out on medical leave, employers often uncover inefficiencies and performance issues that were not obvious before the leave.  Employers facing such circumstances may want to consider:

  • Waiting a period of time after the employee’s return in order to avoid an inference of causation
  • Placing an employee on a performance improvement plan or other interim step before termination
  • When providing reasons for a termination, using broad terms that encompass various issues
  • Documenting the reasons for a termination in an internal document that is not shared with the employee (if you are working with counsel, mark this document privileged)
  • Training managers, HR individuals and other employees who handle leave issues not to make any comments about the timing of a leave or whether a leave will be difficult for the employer to manage.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.