Workplace Policies and Processes

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.

 

 

 

By: Timothy M. Watson and John P. Phillips

Seyfarth Synopsis: Compelled self-defamation claims most commonly occur in the wrongful termination context, when plaintiffs allege they are required to defame themselves to prospective employers because they are required to tell such employers the reasons for their discharge.   However, in a win for employers, the Texas Supreme Court recently ruled that Texas does not recognize such a claim, joining the majority of states and providing certainty to Texas employers.

Recently, and as a matter of first impression, the Texas Supreme Court decided whether Texas recognizes a claim for compelled self-defamation—it does not.  A typical defamation claim requires:  (1) the publication of a false statement of fact to a third party; (2) that was defamatory concerning the plaintiff; (3) with the requisite degree of fault; and (4) damages, in some cases.  Claims for compelled self-defamation generally occur in wrongful termination lawsuits, when plaintiffs allege that their former employer terminated them for false reasons and they were subsequently required to disclose the false reason to prospective employers, thereby harming their reputations.  The majority of courts to address the issue, however, have declined to accept the theory of compelled self-defamation, and the Texas Supreme Court found it to be incompatible with the at-will employment doctrine and unwise as a matter of policy.

To view the full alert, please click on the link below:

http://www.seyfarth.com/publications/MA060117-LE3

 

By Louisa Johnson and Salomon Laguerre

Synopsis:  The Fourth Circuit Court of Appeals recently ruled that an employer had done nothing wrong when it (i) filled the plaintiff’s position during his leave, (ii) restored the plaintiff to a different, but equivalent, position upon his return, and (iii) separated the plaintiff six weeks later as part of a reduction in force.

A recurring issue for employers is whether to fill an employee’s position while that employee is absent on a leave covered by the Family and Medical Leave Act (“FMLA”) and, if so, what position can be offered to the employee upon return to work that will satisfy the “equivalent position” alternative requirement under the FMLA. In a recently published opinion, the Fourth Circuit Court of Appeals has provided some helpful guidance.

In Gary Waag v. Sotera Defense Solutions, Inc., No. 15-2521 (4th Cir. May 16, 2017),  the employer, a defense contractor, was selected by the U.S. Army as one of several non-exclusive prime contractors that could bid on task orders for a software solutions program.  When it was selected but before it won any task orders, the employer made the plaintiff the program manager.  Because there were no immediate task orders to bid on, the plaintiff’s first job was not program management but instead business development—building relationships with the government to best position the company to win work when there were tasks orders to bid on.

A few weeks after the plaintiff began his new role, he injured his hand and notified his employer that he would need to be absent from work for two to three months. The employer notified the plaintiff that it needed to make another employee the program manager in the plaintiff’s absence.  When the plaintiff asked what that would mean for his role upon return to work, the employer was careful to say that it was important to have someone in the program manager role in the interim to get the team up and running, and that it would “figure out what roles work best for all involved” once the plaintiff returned from leave.

The program never left the business development stage during the plaintiff’s leave because there were no task orders to bid upon at the time. Upon the plaintiff’s return, the employer placed the plaintiff in a new role to help grow a different government contract program where there were actually task orders to be bid upon.  Unfortunately, the employer did not win those bids.  Six weeks after the plaintiff’s return to work, the plaintiff’s was fired as part of a reduction in force caused by a federal budget sequestration that drastically decreased the employer’s government work and its revenue.  The program manager who had filled the plaintiff’s role during his leave was not part of the reduction in force not because he held the plaintiff’s former program manager role but because he was a critical member of other programs that were generating revenue.

The plaintiff sued for purported interference with his FMLA rights because he was not restored to his original position after his leave, he did not believe his post-leave job was an equivalent position, and he believed his new job had been a sham role that was pre-selected for the lay-offs. He also argued that his termination was in retaliation for taking leave.  The trial court ruled in the employer’s favor on all counts, and the plaintiff appealed.

In upholding the trial court’s ruling, the Fourth Circuit noted that, under the FMLA, the employer can restore an employee either to his original position or to an equivalent position. The FMLA does not indicate a preference for one option over the other, “and it does not require an employer to hold open an employee’s original position while that employee is on leave.”

The Fourth Circuit also agreed with the trial court that the plaintiff’s new position was “equivalent” to his pre-leave position because the plaintiff continued to receive his same salary of $189,000.00 and was still eligible for bonuses; continued to enjoy the same health benefits; had the same worksite; held the same job title (Senior Director); still reported to a Vice President; and had the same primary duty of business development in both roles.

The plaintiff pointed to differences in job duties of the two positions that would have existed had the employer won a task order. The Fourth Circuit did not find such differences to be material because no task orders were won before or after plaintiff’s leave that would have necessitated the plaintiff performing these additional, conditional duties. In addition, while the plaintiff contended that he was no longer part of the “core management group” as he had been before leave, the Court found that a “loss of prestige” was a “de minimis” difference that did not prevent the pre- and post-leave jobs from being equivalent.

Finally, the Fourth Circuit agreed that a mere six weeks between the plaintiff’s return from leave and employment termination may be sufficient temporal proximity to show causation for a retaliation claim. Nonetheless, the plaintiff had failed to present any evidence that the employer’s reason for the plaintiff’s separation—the disastrous effect of the federal budget sequestration on the programs on which the plaintiff had worked—was a pretext for retaliation.  In so ruling, the Fourth Circuit noted that the plaintiff had the burden of proving pretext, rather than the employer having the burden of proving that the plaintiff would have been fired even if he had not taken leave, because the employer did not fire the plaintiff while on leave.  Instead, the employer returned the plaintiff to an equivalent position after leave that the employer had shown was not slated for lay-offs at the time of the plaintiff’s return from leave.

The key takeaways from this case are as follows: (1) while employers should, when possible, keep an employee’s position open during his or her leave, employers do not have an obligation to do so under the FMLA, although the analysis may be different when the Americans with Disabilities Act (“ADA”) applies as well; (2) if an employer reinstates an employee to an equivalent position, the FMLA requires the post-leave position to be “virtually identical” to the prior position in terms of pay, benefits, status, privileges, and working conditions and substantially equivalent in terms of skill, effort, responsibility, and authority; (3) even if communications with an employee during leave do not have the intended effect of managing the employee’s expectations about post-leave employment, such communications can help in the defense of litigation; and (4) restoring an employee post-leave to an equivalent position when his or her job has been filled in the interim will usually be a more defensible approach than firing the employee while on leave.

By Dawn Reddy Solowey

Seyfarth Synopsis: Anti-Muslim rhetoric dominates many media headlines.  A May 9, 2017 decision by the U.S. Court of Appeals for the Second Circuit highlights the risks to an employer when anti-Muslim rhetoric enters the workplace.

The Facts

In Ahmed v. Astoria Bank et al., the Second Circuit considered a claim brought by a plaintiff employee who had been terminated from her employment at Astoria Bank, at the end of her probationary period, for tardiness and carelessness in checking important documents.  The employee’s claims included that she had been subjected to a hostile work environment because she is Egyptian and Muslim.

The History

The District Court had granted summary judgment to the employer. As to the hostile-environment claim, the Court had reasoned that the alleged stray comments did not rise to the required “severe and pervasive” level.  The employee appealed only the ruling on the hostile environment claim.

The Second Circuit’s Holding

The Second Circuit reversed, holding that a reasonable jury could find that the employee was subject to severe and pervasive discriminatory harassment. The Court relied principally on the employee’s evidence that the supervisor “constantly” told her to remove her hijab head-covering, which he referred to as a “rag”; demeaned her race, ethnicity and religion “on several occasions”; and made a comment during her September 11, 2013 interview that she and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.”

Considering this evidence, together with allegations such as that another manager used hand gestures and spoke slowly to the plaintiff in everyday conversation as if to suggest she did not know English, the Second Circuit held that a jury could conclude that the plaintiff was subject to a “steady barrage of opprobrious” racial and anti-Muslim comments.

On that basis, while acknowledging the evidence was “on the knife’s edge” between summary judgment and trial, the Court reversed the District Court’s grant of summary judgment and remanded for a jury trial.

The Broader Context

Concerns about anti-Muslim sentiment affecting the workplace are hardly new. We’ve blogged before about the EEOC’s 2016 Questions and Answers for employers concerning workers who are, or are perceived to be, Muslim or Middle Eastern.

In that publication, issued in the wake of the Paris and San Bernandino attacks, the EEOC posited that, “Reactions in the workplace to world events demand increased efforts by employers to prevent discrimination.” Since then, the need has arguably only increased.

So What Can Employers Do?

Employers can take preventative steps to mitigate the risks.

  • The current climate is an opportunity for employers to take a fresh look at anti-discrimination and harassment policies, complaint mechanisms, and accommodation practices, to ensure compliance with federal, state and local laws.
  • Effective training not only helps prevent litigation, but can assist a defense. All employees should be trained that harassment and discrimination – including comments such as those alleged in the Ahmed case – will not be tolerated.  Training that is specific and interactive is most effective.
  • Companies should further train managers on nondiscriminatory hiring practices, and how to manage employee complaints.
  • Managers should also be aware of the need to consider accommodations for certain religious practices, such as the wearing of a hijab, and how to process such requests. Managers should be trained that an employee who receives a religious accommodation should never be subject to negative comments as a result.
  • When an employee complains of alleged discrimination or harassment, the employer should investigate promptly, and if a violation is found, take prompt remedial action.

 

 

By Karla E. Sanchez and Craig B. Simonsen

Seyfarth Synopsis: Employer must reinstate four employees after it terminated the employees for agreeing with a former coworker’s email that complained about their terms and conditions of employment.

Recently, a National Labor Relations Board Administrative Law Judge ruled that a restaurant unlawfully reprimanded and discharged several employees in violation of Section 8(a)(1) of the National Labor Relations ActMexican Radio Corp., Case No. 02-CA-168989 (April 26, 2017).

A series of disagreements between a new manager and several of the restaurant’s employees led to several employees reaching out to management to complain about the new manager and to one employee quitting her employment. After resigning, the employee sent management and several of her former coworkers a lengthy email that management described as “hurtful and mean spirited.”  The email went through the reasons why she had worked at the restaurant, why she had loved working with her coworkers, and how the new manager had changed that.  She complained about how the new manager treated them, how several coworkers had complained to other managers, who according to her, did nothing, and she alleged that the new manager was engaging in unlawful conduct. Four employees replied to the email in agreement with the sender and thanked her for sending the email.

Management, who also received the coworkers’ replies, viewed the replies as “deeply insubordinate.” As a result, management decided to meet with the four coworkers to ask them on an individual basis why they had supported their former coworker and agreed with the contents of the email. All four were discharged for, among other things, allegedly engaging in insubordination and agreeing with an email that contained “false accusations of management” and had used “inappropriate language,” including profanity.

The ALJ found that the restaurant unlawfully discharged the four employees for replying to the former coworkers’ email. The ALJ found that the employees’ conduct had been protected, concerted activity. The ALJ noted that these four employees had complained to management about the new manager and about their working conditions and that their replies to the email was an extension of this protected, concerted activity. The email itself also addressed their working conditions, and thus, responding to it was also protected, concerted activity.

The restaurant tried to argue that the email was “opprobrious conduct,” and therefore, lost the protections of the Act. The ALJ disagreed, finding:

  • The four employees did not add anything negative to the original email;
  • The email was a part of an ongoing dialogue between the restaurant and the workers;
  • The email contained little profanity and did not constitute insubordination, but rather, was “a critique of the management style” of the restaurant;
  • The email was distributed internally and did not cause a loss of reputation or business for the restaurant; and
  • The email did not cause a disruption of the business.

The ALJ ordered the restaurant to reinstate the four employees to their former positions, to make them whole for their lost earnings, to pay them for their job-search and interim employment expenses, to remove any reprimands from their files, and to post at the restaurant a standard NLRB notice.

The takeaway for employers:  Employers must be careful when confronted by employees’ criticisms, complaints, and allegations, whether in person, by email, or by posting on social media platforms.  While some “complaints” might not be protected by law and/or might constitute insubordination, an employer should discuss the particulars with an attorney before determining whether the conduct warrants discipline or termination.  Some “complaints,” even when profanity is used and even when they are hurtful to the reader, are protected under the NLRA or other laws, and adverse conduct taken against the employees will be found to be unlawful.

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

By Erin Dougherty FoleyAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Minnesota Supreme Court found that a job applicant need only prove that the employee’s interest in a 12-week maternity leave was the “substantial causative factor” that “actually motivated” the employer’s decision to rescind her job offer and did not need to show anger or hostility about pregnancy under the Minnesota Human Rights Act.

In a recent Minnesota Supreme Court case, LaPoint v Family Orthodontics, P.A., A15-0396 (Apr. 5, 2017), a plaintiff challenged an orthodontist’s decision to rescind her job offer after learning she was pregnant and would take maternity leave.  The plaintiff argued that she had been discriminated against on the basis of her pregnancy because her pregnancy played a role in the employer’s  decision to rescind her job offer.  The district court ruled for the employer at a bench trial!

In setting the standard of proof, the Court relied on Goins v. West Grp., 635 N.W.2d 717 (Minn. 2001) and Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619 (Minn. 1988). Goins required that a plaintiff prove that the pregnancy “actually motivated” the employer’s decision not to hire. Anderson required that plaintiff demonstrate that the pregnancy was “a substantial causative factor” in the employment decision.

The Court rejected the notion that the pregnancy must be a “but-for” cause of the employer’s conduct. As such, the plaintiff need not prove that the employer would have hired her absent unlawful discrimination in order to establish liability, and “proof by the employer that it would have made the same decision absent a discriminatory motive is no defense.”

According to the Court, the employer stated, on three separate occasions, that the plaintiff’s failure to disclose her pregnancy (1) was one of the “two things [that] really kept [her] from sleeping well”; (2) was one of her “concerns”; and (3) left her “confused,” one of “two concerns” that together constituted “[t]he reason why [she] withdrew the job offer.” Further, the plaintiff argued that “rescinding a job offer because a person fails to disclose a pregnancy is illegitimate discrimination on the basis of sex.” More so, the district court found that the defendant “questioned why plaintiff did not bring [her pregnancy] up initially so they could discuss leave of absence issues at that time,” but that “[h]er concern was the [effect of the] length of the leave sought by plaintiff on the practice.”

The Court recited that the defendant “did not demonstrate any animus toward plaintiff because of her pregnancy. Her overriding concern was the disruption a twelve week maternity leave would have on her practice and the impact upon her employees should she deviate from the Clinic’s longstanding policy of six weeks.”

Finally, the Court concluded that it was unable to determine whether the district court, if it had applied the correct law regarding animus, would have made the same findings of fact. Accordingly, the Supreme Court remanded the case.

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 Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has recently updated and published its enforcement procedures for occupational exposure to workplace violence.  The procedures explain and lay out the elements of an OSHA General Duty Clause violation, as well as NIOSH’s guidance for determining the potential for workplace violence.

OSHA defines “workplace violence” as an act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.  It ranges from threats and verbal abuse to physical assaults, or homicide.  It can involve employees, clients, customers, and visitors.  In addition, OSHA asserts that nearly two million American workers report being victims of workplace violence each year.  According to OSHA: “unfortunately, many more cases go unreported.”

To assist the Agency and its Certified Safety and Health Official (CSHO) inspectors in assessing and citing instances of workplace violence, OSHA has recently released its updated Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence, OSHA Directive CPL 02-01-058 (January 10, 2017).  The Directive was last updated in 2011.

The Directive lays out the elements of a General Duty Clause violation, including:

  • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
  • The hazard was recognized;
  • The hazard was causing or was likely to cause death or serious physical harm; and
  • There was a feasible and useful method to correct the hazard.

The Directive also lists “known risk factors”, which “shall be considered in determining whether to inspect a worksite, [but which] none of them would individually trigger an inspection.” The risk factors are: contact with the public; exchange of money; delivery of passengers, goods, or services; having a mobile workplace such as a taxicab; working with persons in healthcare, social service, or criminal justice settings; working alone or in small numbers; working late at night or during early morning hours; working in high-crime areas; guarding valuable property or possessions; working in community-based settings, such as drug rehabilitation centers and group homes.

How Can Workplace Violence Hazards be Reduced?

OSHA indicates that “in most workplaces where risk factors can be identified,” the risk of assault can be prevented or minimized if employers take appropriate precautions. It suggests that one of the best protections is a zero-tolerance policy toward workplace violence.  The policy, OSHA advises, should cover all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel.

By assessing worksites, employers can identify methods for reducing the likelihood of incidents occurring. “OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence in both the private sector and federal workplaces.”

Employers seeking to address this topic in the company’s employee handbook or policy documents should do so carefully, as in the event of an incident, this will be one of the first company documents requested and received by an inspector.

On the enforcement side, we note that OSHA continues to issue citations under the General Duty Clause for alleged workplace violence hazards. However, all of these citations follow one or more actual instances of violence at work.  OSHA appears to be unable to gather sufficient facts during an inspection to support a citation in advance of an actual instance of workplace violence — even though OSHA’s citations allege the employer should have addressed the hazard in advance.

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) Team or the Workplace Counseling & Solutions Team.

By Caitlyn Crisp and Michael Cross

Seyfarth Synopsis: California voters gave the green light to recreational use of marijuana with the passage of Prop 64. Marijuana users may have felt like they struck Acapulco Gold, but a review of the law on drug testing in the workplace may turn out to be a buzzkill.

When can an employer drug test its employees?

Last November, California voters passed Proposition 64—the Adult Use of Marijuana Act. The new law permits individuals over the age of 21 to possess up to one ounce of marijuana or eight grams of marijuana concentrates. California households, regardless of how many people reside there, can grow up to six plants at a time.

But Prop 64 also expressly protects an employer’s right “to enact and enforce workplace policies pertaining to marijuana.” In other words, despite Prop 64, employers may still prohibit their employees from using the sticky icky. This good news for employers who want to maintain drug-free workplace policies may leave some employees dazed and confused.

Employers have had the right to narrowly craft drug testing policies to meet their needs. Reinforcing that right are Prop 64’s drug-free workplace carve-out and the fact that ganja use remains illegal on the federal level. It remains the case, however, that drug testing may affect an employee’s privacy rights, which create limits on when an employer may drug test.

California courts have used a balancing test to determine whether a drug test is legal for existing employees. Courts weigh the employer’s basis for testing versus the employee’s expectation of privacy. The nature of the test, the equipment used, the manner of administration, and its reliability are factors a court may consider in determining whether a drug test is permissible.

If an employer has an objectively reasonable suspicion that an employee is using drugs, then a drug test is likely permissible, especially when there is a threat to workplace safety. California employers generally have authority to eradicate potential harm to their business and their employees’ safety.

Note: Stay tuned for next week’s blog post on random drug testing by employers.

How should the employer notify employees about its drug testing policy?

If an employer plans to drug test, it should distribute to employees a clear drug policy before employees are subject to testing. The policy should explicitly prohibit the use of marijuana and notify employees of the circumstances in which a drug test would occur. This type of notice may decrease a drug testing program’s intrusion on an employee’s privacy interests.

Some employers may choose to educate employees about how marijuana lingers in one’s body beyond the time the “high” wears off. Because cannabis remains in a person’s system longer than other drugs, it’s possible for an employee to test positive for marijuana use that occurred during non-working time. A marijuana test, unlike an alcohol test, will not indicate whether the test subject is under the influence at the time of the test. Rather, a drug test may show THC in the bloodstream that has resulted from marijuana use days, weeks, or even months before the day of the test.

Under the federal Controlled Substances Act, marijuana continues to be a Schedule I controlled substance whose use and possession is illegal. For that reason, employers remain within their rights to maintain drug free-workplaces that exclude marijuana. In addition, federal contractors, under the federal Drug-Free Workplace Act, must establish drug-free workplaces.

Employers generally have the right to institute an Employee Assistance Program (EAP), which allows an employee who has failed a drug test to attend an assistance program to help curb a substance abuse problem, or to place an employee in a supervised position and withhold certain privileges during a probationary period. Whatever policy an employer enacts, the policy should give employees clear expectations about the situations in which the employer will exercise its right to conduct a drug test for cause.

Is an employer exposing itself to risk by drug testing employees?

Drug testing employees may give rise to claims by employees for disability discrimination, invasion of privacy, and defamation. In addition, employers who fail to uniformly apply drug testing policies risk exposure to a discrimination suit under the Fair Employment and Housing Act. An employer must not single out protected categories of employees for drug testing.

How can Seyfarth help?

Employers should assess their written policies, and training and education of employees to ensure compliance with California’s drug testing laws. Seyfarth’s Workplace Solutions Group is ready and willing to help to make sure your company is in compliance.

Edited by Chelsea Mesa.