Workplace Policies and Processes

By Rhandi Childress Anderson and Erin Dougherty Foley

Seyfarth Synopsis: Sixth Circuit Court of Appeals clarifies that employers have discretion to provide a reasonable accommodation as identified through the interactive process. Once an employee abandons the interactive process, the employer has no duty to accommodate.

Under the Americans with Disabilities Act (ADA), the purpose of the interactive process is to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Employers may erroneously believe that the interactive process as a tool is something utilized by and beneficial to employees. However, the Sixth Circuit has recently shed light on just how the interactive process protects employers from having to make on-the-spot accommodations of an employee’s choosing.

In Brumley v. United Parcel Service, Inc., the Plaintiff Melissa Brumley, who worked primarily as a sorter, injured her back while unloading heavy packages from a UPS truck. After receiving worker’s compensation and taking a leave of absence, she initially returned to work with two return-to-work notes that included permanent lifting restrictions and a statement that Brumley may return to “local sort.” Even though it was unclear exactly how Brumley requested an accommodation, upon receipt of Brumley’s return-to-work notes UPS initiated an internal ADA interactive process, and pursuant to that process, asked Brumley to submit two medical forms that would allow it to evaluate further her restrictions and identify possible accommodations. Brumley remained on leave as a result of this request.

Thereafter, and after nearly a month delay in providing UPS with the requested medical documents, Brumley met with UPS’s Human Resource Manager. At that meeting, UPS indicated that they were reviewing Brumley’s restrictions and considering positions she could fill. However, Brumley disclosed at that meeting that she desired to voluntarily discontinue the interactive process and return to her doctor to have her work restrictions lifted. Because Brumley’s lifting restrictions were ultimately removed by her doctor, she ultimately returned to work without accommodations. After Brumley’s restrictions were lifted, UPS closed the interactive process and Brumley returned to work.

Nevertheless, several months later, Brumley sued UPS for failure to accommodate and disability discrimination, among other claims — in other words for keeping her off work during the time that they were evaluating her “return to local sort” restrictions from her doctor. The district court granted summary judgment in UPS’s favor on all claims and Brumley appealed. On appeal, Brumley argued, among other things, that UPS should have allowed her to work in local sort when she returned to work because her doctor’s note stated that she was able to do that work.

The Sixth Circuit affirmed the district court’s decision and found that an employer’s refusal to provide an accommodation to the position of the employee’s choice immediately upon the employee’s request is not, in and of itself, a failure to accommodate under the ADA. UPS had discretion to provide a reasonable accommodation as identified through the interactive process. Once Brumley voluntarily abandoned that process, UPS could not be liable for failing to provide a reasonable accommodation.

Takeaways for Employers

With ADA claims on the rise, employers should remember the importance of a formal (and documented) interactive process to identify a reasonable accommodation that works for the company, even if that process takes time. Employers can view the interactive process as both a shield and a sword for defending itself against claims of failure to accommodate. The duty to engage in the interactive process applies equally to both employers and employees. If the employee opts-out of the interactive process, the employer is under no duty to proceed with an accommodation. This decision is an important reminder that the interactive process under the ADA is not just a requirement for employers to engage in good faith—it also demands the same from employees before they can claim a failure to accommodate.

If you have any questions regarding this area or need assistance evaluating personnel decisions relating to employees’ requests for accommodations, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations Team.

By Samantha L. Brooks and Karla Grossenbacher

Seyfarth Synopsis: Employees’ use of their personal social media accounts in ways that could impact an employer’s business present challenges to employers.

In this case, a Maryland state government employee claimed that she was retaliated against for a Facebook post where she referred to a Maryland gubernatorial candidate as an “a**clown.” In granting a preliminary injunction and reinstating an employee’s job duties, the U.S. District Court for the District of Maryland held that reassignment of the employee’s duties three days after the Facebook post was retaliation for protected speech, particularly where the employer could not demonstrate how the post harmed the employer. Thomson v. Belton, No. ELH-18-3116, 2018 WL 6173443 (D. Md. Nov. 26, 2018).

The plaintiff served as the public information officer for the Natural Resources Police (NRP), a subdivision of the Maryland Department of Natural Resources (DNR). She was a public employee and not a political appointee. As the public information officer, plaintiff acted as a spokesperson for the DNR, responded to media inquiries, administered the NRP’s social media accounts, and issued press releases, among other duties.

On September 17, 2018, while in her home, using her own electronic device and her own Facebook account, she responded to a Facebook post of a colleague by referring to Maryland gubernatorial candidate Ben Jealous as an “a**clown.” Plaintiff’s comment was prompted by Mr. Jealous’ decision to veto a reporter’s participation as a panelist in the only gubernatorial debate with Governor Larry Hogan. The following day, plaintiff’s supervisor asked her whether she had posted “*a**clown” on Facebook. She acknowledged that she had, offered to delete the post, and immediately did so of her own volition. Of note, plaintiff’s Facebook post did not violate the DNR’s social medial policy. Less than one week after the post, plaintiff was stripped of the majority of her media-related duties and they were reassigned, although she was permitted to draft press releases. Neither her title nor salary were changed.

On October 9, 2018, plaintiff filed suit against Mark Belton, Secretary of the DNR, in his individual and official capacity alleging violations of plaintiff’s rights under the First and Fourteenth Amendments. She also filed a Motion for a Temporary Restraining Order and/or Preliminary Injunction which, upon agreement by the parties, was treated as a Motion for Preliminary Injunction.

The defendant argued that plaintiff was demoted because of protracted performance issues, and not because of the Facebook post. Specifically, the defendant highlighted three instances where plaintiff had failed to communicate the happening of newsworthy events, including the discovery of a chest containing human bones at a beach in Ocean City, Maryland, the drowning death of a child, and a news article that reported a motor vehicle accident involving an NRP officer which resulted in the death of a family pet.

Since plaintiff was a public employee, the Court considered plaintiff’s claim under the Connick/Pickering standard, i.e. (1) whether there was an adverse action, (2) whether the employee was speaking as a citizen on a matter of public concern, (3) whether the employee’s interest in speaking on the matter of public concern outweighed the government’s interest in managing the workplace, (4) and whether the employee’s speech was a substantial factor in the adverse action. Thomson, 2018 WL 6173443 at *15. See Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983).

Adverse Action

The Court found that the plaintiff was subject to an adverse action. Prior to the reassignment of her media-related duties, plaintiff’s most important and most significant duties involved direct contact with the media. After reassignment, she was prohibited from such direct contact. The Court found that her new role — without the media duties — was less prestigious and less interesting. Id. at 21. The Court also noted plaintiff’s reassignment was neither trivial nor de minimus solely because plaintiff’s pay and some responsibilities remained unchanged.

Matter of Public Concern

The Court noted that plaintiff’s comment pertained to a matter of public concern. The Court further noted that discussion about political candidates — including plaintiff’s one word Facebook comment — fell within the realm of First Amended protected speech. The Court held that plaintiff’s comment was “in response to the posts of others on the issue of the candidate’s decision to veto a reporter from serving on the panel for a key election debate. This suggests that she was participating in an online public discussion . . . .” Id. at *22. Finally, the Court noted that plaintiff was speaking as a private citizen and not in the course of her official duties.

Employer’s Interest in Managing the Workplace

Defendant did not provide any evidence that plaintiff’s speech harmed NRP or DNR operations. The only harm the defendant could identify was that calling a political candidate a derogatory name and using inappropriate language was contrary to goals of the NRP. The Court held, however, that “inappropriate language unrelated to the employee’s employment, and spoken outside the workplace, does not intrinsically harm the employer’s interests.” Id. at 27.

Speech was a Substantial Factor in Adverse Action

The Court held that the reassignment of plaintiff’s duties was in retaliation for her Facebook post. The temporal proximity of plaintiff’s job assignment, just three days after Facebook post, clearly demonstrated that plaintiff’s protected speech was a substantial factor in the reassignment of her duties. Id. at 24. Of note, the Court noted that the record did not corroborate defendant’s claims that plaintiff had performance issues.

The court ultimately held that plaintiff was entitled to a preliminary injunction requiring the immediate reinstatement of plaintiff’s job duties.

Private Employer Takeaways

Have a social media policy! Employees who work for private, non-governmental employers do not generally have First Amendment protection for their speech in the workplace. Before taking any action based on an employee’s speech on social media, employers should first consult their social media policies to determine whether there has been a violation of the policy. Employers should also determine if the employee has some other interest at issue, such as speech that could implicate the protections of Title VII, speech that could violate the employer’s EEO or anti-harassment policy, or speech that implicates an employee’s rights under various union regulations, before taking any action.

Document, document, document! Employers must remember to document performance deficiencies or mistakes. If employers need to justify a personnel action or if litigation ever arises, it will be important to have a contemporaneous record of performance issues.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations, Social Media Practice Group, or Workplace Policies and Handbooks teams.

By Andrew S. Boutros, Christopher RobertsonJohn R. Schleppenbach, and Craig B. Simonsen

Seyfarth Synopsis:  The United States Department of Justice recently filed a seismic motion to dismiss in a series of healthcare fraud-related cases.  In doing so, the government questioned the whistleblowers’ theory of False Claims Act liability and stressed the expense to the government of monitoring the litigation and responding to discovery.  This is the latest step the DOJ has taken to reign in potentially unwarranted FCA suits in the wake of its so-called Granston Memo.

This past Monday, December 17, 2018, the United States Department of Justice (DOJ) took the significant step of filing a motion to dismiss eleven False Claims Act (FCA) suits brought by whistleblowers alleging that patient assistance services supplied by pharmaceutical companies are unlawful kickbacks.  This concrete and decisive action by the DOJ suggests it intends to strongly implement its recent policy memo targeting weak or unfounded FCA actions.

By way of brief background, the FCA, 31 U.S.C. §§ 3729 – 3733, provides civil penalties against any “person” who, in relevant part, “knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval.”  Although the U.S. Attorney General can bring suit under the FCA, the FCA permits private persons, known as “relators,” in what is known as a “qui tam” action, to bring suit on behalf of the government and collect as a reward a percentage of the recovery.  The recovery can include civil penalties of $5,500 to $11,000 for each violation, treble damages for the funds fraudulently obtained, plus attorneys’ fees and costs.  Thus, some firms specialize in investigating and bringing FCA claims in hopes of reaping these sizable rewards.

The relators in the eleven actions the DOJ seeks to dismiss are all backed by one such specialist firm, National Health Care Analysis Group, and all raise the same theory (which was recently successful in a suit by California regulators) that drug makers are in essence paying “kickbacks” when they assist prescribing doctors with prior authorizations and nurses with information to educate patients about how to use their drugs properly.  The DOJ’s dismissal motion was strongly critical of that theory, describing the provision of patient support services related to medication as “common industry practices” that are “appropriate and beneficial to federal health care programs and their beneficiaries.”  The DOJ also told the courts that, based on its investigation “the government has concluded that the relators’ allegations lack sufficient factual and legal support.”

In addition, the DOJ’s filing stressed the “substantial costs in monitoring the litigation and responding to discovery requests” that the DOJ would incur should these FCA suits go forward. It noted the six-year period covered by the complaints and the nearly 500,000 prescriptions written by more than 10,000 physicians during this time frame.  Ultimately, it concluded the allegations of the complaints were “unlikely to yield any recovery sufficient to justify the significant costs and burdens that the government will occur if the cases proceed.”

These arguments are consistent with the positions articulated in the DOJ’s January 10, 2018 memorandum on Factors for Evaluating Dismissal Pursuant to 31 U.S.C. §  3730(c)(2)(A) (Granston Memo), which directed federal attorneys to be more aggressive about ending FCA suits that lack substantial merit.  The Granston Memo states that “over the last several years, the Department has seen record increases in qui tam actions filed with annual totals approaching or exceeding 600 new matters.  Although the number of filings has increased substantially over time, the rate of intervention has remained relatively static.  Even in non-intervened cases, the government expends significant resources in monitoring these cases and sometimes must produce discovery or otherwise participate.”

This latest DOJ motion to dismiss does not represent the DOJ’s first action to implement the Granston Memo.  Earlier this month, the DOJ asked the United States Supreme Court to dismiss an appeal in an FCA case out of the Ninth Circuit because the DOJ was no longer interested in pursuing the case.  In that matter, too, the DOJ cited “burdensome discovery which would distract from the agency’s public-health responsibilities.”

In light of these developments, it would not be surprising to see additional motions to dismiss from the DOJ in FCA cases in 2019 and beyond.  More than ever, defense-oriented FCA practitioners must vigilantly look for opportunities to invoke the Granston Memo and its policy underpinnings in FCA suits—especially ones that seek to push the FCA envelope with novel, aggressive, or questionable theories of liability.

Those with questions about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Seyfarth Shaw’s White Collar, Internal Investigations, and False Claims Team.

By Joshua D. SeidmanTracy M. Billows, Ann Marie Zaletel, William P. Perkins, and Ryan B. Schneider

Seyfarth Synopsis:  This blog presents Seyfarth Shaw LLP’s Infographic tracking the spread of paid sick leave and anti-local sick leave laws around the country. The Infographic is divided into four distinct time periods to highlight the geographic and historic evolution of these laws.

Introduction

Over the last decade, dozens of states and cities have infected the nation with a patchwork of paid sick leave laws and ordinances. The paid sick leave epidemic has created compliance challenges for countless employers, whether their operations are nationwide, multi-state, or limited to a single state. As the paid sick leave epidemic has grown, so too has the number of states immunizing their boundaries from local paid sick leave ordinances.

The current spread of paid sick leave and anti-local sick leave laws takes several forms. In some states, only local paid sick leave ordinances exist. In others, there are only state paid sick leave laws in place. Some statewide paid sick leave laws strip localities of the ability to regulate paid sick leave. Other statewide sick leave laws have declined to enforce the anti-local vaccine, thereby allowing state and local paid sick leave mandates to co-exist. Finally, some states have enacted anti-local sick leave legislation without any statewide paid sick leave mandate in place.

The presence of a local paid sick leave ordinance or anti-local paid sick leave law does not prevent a state from passing a paid sick leave law in the future. Additionally, regardless of the presence or absence of paid sick leave mandates or anti-local paid sick leave laws, new strands of the paid sick leave virus, as well as new vaccines, have emerged over the years due to legislative and executive shifts across the nation. Needless to say, the paid sick leave landscape is constantly evolving. These maps illustrate the spread of the paid sick leave epidemic and anti-local paid sick leave vaccine over the years.

Read on for specific points about the development of paid sick leave laws during each of the four relevant time periods.

I.  Pre-2014

Note 1: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Seattle, WA; and (4) Washington, D.C. Outside of these locations, and the state of Connecticut, paid sick leave was an area left to employer discretion.

Note 2: A majority of the nine state anti-local paid sick leave laws in effect prior to 2014 preempted localities from regulating a wide range of employment-related matters, such “employment benefits” or a related term (which generally includes time off benefits and leave), as opposed to expressly preempting localities from regulating sick leave.

Note 3: A paid sick leave ordinance was enacted in Milwaukee, WI in 2008. However, due to judicial and legislative delays, the ordinance had not yet gone into effect when Wisconsin passed its statewide anti-local paid sick leave law in 2011.

II. 2014-2015

Note 1: In a matter of two years, the number of state and local paid sick leave laws around the country that were in effect or scheduled to go into effect increased from five to 23. The sick leave epidemic particularly impacted jurisdictions in the Northeast and Mid-Atlantic, and on the West Coast. To combat the epidemic, state anti-local paid sick leave laws emerged in four additional states.

Note 2: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (covers certain hotel employers only); (6) Portland, OR; (7) Philadelphia, PA; (8) Jersey City, NJ; (9) Newark, NJ; (10) Passaic, NJ; (11) East Orange, NJ; (12) Paterson, NJ; (13) Irvington, NJ; (14) Montclair, NJ; (15) Trenton, NJ; (16) Bloomfield, NJ; (17) New York City, NY; (18) Seattle, WA; (19) SeaTac, WA (covers certain transportation and hospitality employers only); and (20) Washington, D.C.

Note 3: When California’s statewide paid sick leave law went into effect, it became the first state in which both state and local paid sick leave mandates were imposed.

Note 4: During this time period, New Jersey municipalities added nine local paid sick leave mandates and became home to the greatest number of municipal sick leave ordinances of any state in country.  New Jersey would retain this title until October 29, 2018.

Note 5: Pittsburgh, PA also passed a paid sick leave ordinance during this timeframe. It was scheduled to go into effect in early January 2016. However, it has not taken effect due to ongoing litigation regarding whether Pittsburgh could pass such an ordinance. The Pennsylvania Supreme Court heard oral arguments on the matter in October 2018.

III. 2016-2017

Note 1: During this 2016-17 window, the paid sick leave epidemic nearly doubled, increasing the number of laws with state or local mandates either in effect or scheduled to go into effect from 23 to 40. Notably, not only did the epidemic continue to intensify in the Northeast, Mid-Atlantic, and on the West Coast, but it also began spreading inward to Arizona and localities in Illinois and Minnesota. To combat the epidemic, state anti-local paid sick leave laws emerged in 7 additional states.

Note 2: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (two ordinances – one covers certain hotel employers only and the other generally applies to private employers); (6) San Diego, CA; (7) Santa Monica, CA; (8) Berkeley, CA; (9) Chicago, IL; (10) Cook County, IL; (11) Montgomery County, MD; (12) Minneapolis, MN; (13) Saint Paul, MN; (14) Philadelphia, PA; (15) Jersey City, NJ; (16) Newark, NJ; (17) Passaic, NJ; (18) East Orange, NJ; (19) Paterson, NJ; (20) Irvington, NJ; (21) Montclair, NJ; (22) Trenton, NJ; (23) Bloomfield, NJ; (24) New Brunswick, NJ; (25) Elizabeth, NJ; (26) Plainfield, NJ; (27) Morristown, NJ; (28) New York City, NY; (29) Seattle, WA; (30) SeaTac, WA (covers certain transportation and hospitality employers only); (31) Spokane, WA; (32) Tacoma, WA; and (33) Washington, D.C.

Note 3: Oregon’s statewide paid sick leave law came with an anti-local preemption vaccine, which eliminated the local strain that was in effect in Portland and had been enacted in Eugene.

Note 4: In 2013, the Arizona legislature enacted a preemption law, preempting a wide range of employment matters, including paid sick leave. The 2017 Arizona statewide paid sick leave law, however, expressly permits localities to enact more generous local paid sick leave mandates. See Ariz. Rev. Stat. §§ 23-378, 23-379(b). Given this language and questions surrounding the propriety of the preemption law in a more general context, it is very likely that localities may attempt to regulate paid sick leave in Arizona. See generally United Food & Com. Workers Local 99 v. State, No. CV 2016-092409, 2017 WL 8776461 (Ariz. Super. Ct. Aug. 30, 2017).

Note 5: The North Carolina law prohibiting local regulation of private employment practices (which likely includes sick leave) is set to expire on January 1, 2020.

Note 6: Ohio’s paid sick leave preemption statute (Ohio Rev. Code Ann. § 4113.85) was enacted in 2016 via S.B. 331, a bill regulating a broad range of topics beyond preemption or employment law, and went into effect in March 2017. Many municipalities have filed lawsuits due to S.B. 331’s broad sweep. At least two county courts in Ohio have found that the bill violates the Ohio Constitution’s “one subject” clause and declared all provisions of S.B. 331 unrelated to pet store purchase supply regulation, the bill’s original purpose, unconstitutional. Regardless, localities in Ohio are likely preempted from passing paid sick leave legislation because (1) Ohio Rev. Code Ann. § 4113.85 is in effect, (2) at least one intermediate appellate court case found that because the plaintiffs did not challenge paid sick leave preemption, but rather another provision, the issue of paid sick leave preemption was moot, and (3) the county court decisions do not bind other courts.

Note 7: On January 1, 2017, the federal contractor paid sick leave requirements, as set forth in Executive Order 13706 and the United States Department of Labor’s corresponding Final Rule, went into effect, thereby providing paid sick leave benefits to many employees of certain federal contractors.

IV. 2018

Note 1: 2018 has seen the paid sick leave epidemic spread to only three additional localities. However, the epidemic has continued to evolve and expand as five additional statewide sick leave mandates either went into effect or were enacted this year.  The total number of paid sick leave mandates in effect or scheduled to go into effect at the time of this publication is 35 (this figure excludes Pittsburgh, PA and Austin, TX in light of ongoing lawsuits challenging the cities’ respective paid sick leave ordinances).

Note 2: Local paid sick leave mandates either in effect or scheduled to go into effect in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (two ordinances – one covers certain hotel employers only and the other generally applies to private employers); (6) San Diego, CA; (7) Santa Monica, CA; (8) Berkeley, CA; (9) Chicago, IL; (10) Cook County, IL; (11) Montgomery County, MD; (12) Minneapolis, MN; (13) Saint Paul, MN; (14) Duluth, MN; (15) New York City, NY; (16) Westchester County, NY; (17) Philadelphia, PA; (18) San Antonio, TX; (19) Seattle, WA; (20) SeaTac, WA (covers certain transportation and hospitality employers only); (21) Tacoma, WA; and (22) Washington, D.C.

Note 3: March 30, 2019 is the expected effective date of the Westchester County, NY ordinance because this date is 180 days from the date the paid sick leave bill was “adopted” according to the language of the ordinance and corresponding certification page from the Clerk of the Westchester County Board of Legislatures. However, there are multiple interpretations of the effective date that could result in a slightly different effective date as we near late-March/early-April 2019.

Note 4: The Duluth, MN paid sick leave ordinance is scheduled to go into effect on January 1, 2020.

Note 5: The Texas update is based on the following: The cities of Austin and San Antonio both passed paid sick leave ordinances in 2018.  The Austin ordinance was originally scheduled to go into effect on October 1, 2018, while the San Antonio ordinance is scheduled to go into effect for most employers on August 1, 2019. The Austin ordinance is currently involved in a lawsuit that found the ordinance to be unconstitutional. In addition, the Texas legislature has introduced a bill that would prohibit all municipal paid sick leave ordinances in the state. However, the lawsuit does not impact San Antonio and the preemption bill will not be passed, if at all, until 2019. As a result, at the time of this publication, at least San Antonio’s paid sick leave ordinance is still “scheduled to go into effect” in August 2019.

Note 6: Like the California statewide paid sick leave law, the Washington statewide paid sick leave law, which went into effect on January 1, 2018, does not preempt municipalities within the state from passing more generous paid sick leave mandates.

Note 7: The Spokane, WA paid sick leave ordinance’s “sunset” provision took effect on January 1, 2018, and thus the Spokane ordinance is no longer in effect.

Note 8: Maryland’s statewide paid sick leave law preempted its political subdivisions from passing paid sick leave ordinances on or after January 1, 2017. As a result, Montgomery County’s paid sick leave ordinance, which went into effect in 2016, is still in effect and co-exists with the statewide paid sick leave law.

Note 9: When New Jersey’s statewide paid sick leave mandate went into effect on October 29, 2018, the law preempted the state’s 13 existing local paid sick leave ordinances and all future local New Jersey paid sick leave ordinances from being enacted.

Note 10: Michigan’s statewide paid sick leave law is scheduled to go into effect in late-March 2019.  Michigan is currently the only state that (1) has a statewide paid sick leave mandate, and (2) preempts local paid sick leave ordinances via a law other than the statewide paid sick leave mandate. Michigan had prohibited local paid sick leave mandates since 2015, and thereafter passed its statewide paid sick leave law in 2018.

If you have any questions regarding these issues, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Robert T. Szyba, Gena B. Usenheimer, and Ryan B. Schneider

Seyfarth Synopsis: On December 3, 2018, the New Jersey Senate Labor Committee unanimously advanced a bill that would require covered hotels to provide “panic devices” to certain employees. New Jersey joins the increasing number of jurisdictions considering or enacting this form of anti-sexual harassment legislation.

Background

In September, two state New Jersey state senators introduced S2896 in an effort to protect “hotel employees from sexual assault and other dangerous working conditions.” As amended by the New Jersey Senate Labor Committee, the bill is now before the full Senate for consideration. Notably, the New Jersey bill would impose requirements similar to those found in the recently enacted Seattle and Chicago hotel panic button mandates. (For more information on the Chicago mandate, please see our previous post here.)

Here are some of the highlights from the New Jersey bill:

  • Covered Hotels: The mandate would apply to hotels and similar establishments that contain 25 or more guest rooms.
  • Obligation to Provide a Panic Device: Covered hotels would be required to provide a “panic device” to each hotel employee who, without others, performs housekeeping or room service duties in guest rooms, at no cost to the employee.
    • Panic Device: The bill defines “panic device” as a two-way radio or other electronic device that can be kept on the employee’s person and used to summon immediate on scene assistance from an appropriate hotel staff member. Other mandates under consideration or in effect contemplate the use of a “button.”
  • Employee’s Use: Under the proposal, an employee may use the device when the employee “reasonably believes” that there is an ongoing crime, immediate threat of assault or harassment, or other emergency in the employee’s presence. While awaiting assistance, the employee may stop work and leave the area of perceived danger. An employee who does so would be protected from adverse employment action by the bill’s anti-retaliation provision.
  • Employer Obligations: Beyond promptly responding to the employee’s location, once the device is triggered, covered hotels’ obligations include keeping records of accusations and a list of accused guests for five years, reporting any incident to appropriate law enforcement and cooperating with any investigation, and immediately reassigning the aggrieved employee to an area away from the accused guest’s room, while providing others the option to service the room with a partner or not service the room, for the remainder of the guest’s stay.
    • Guest Conviction: In the event that an accused guest is criminally convicted in connection with an incident brought to the hotel’s attention, the bill would require covered hotels to refuse occupancy for at least three years from the date of the incident.
  • Notice to Employees: The bill would require covered hotels to educate employees about use of the panic device and their rights should they do so and to encourage employees to use the device when appropriate.
  • Notice to Guests: Covered hotels would be required to notify guests of the panic devices by either requiring acknowledgement of the policy upon check in or prominently displaying a sign on the interior side of guest room doors detailing the panic device policy.

New Jersey’s Requirements Compared To Other Jurisdictions

The New Jersey bill contains notable differences as compared to other mandates now in effect. For example, the Chicago ordinance applies to hotels accommodating seven or more guests. Moreover, that ordinance requires a detailed written anti-sexual harassment policy providing aggrieved employees with, among other things, paid time off for certain reasons relating to guest misconduct, and that posters be displayed in multiple languages in areas where employees can reasonably be expected to see them. Chicago also does not provide circumstances under which an accused guest must be denied occupancy. Like Chicago’s ordinance, Seattle’s also allows paid time off to aggrieved employees.

Further unlike New Jersey, where an aggrieved employee alleges assault or sexual misconduct under penalty of perjury, covered hotels in Seattle are prohibited from allowing the accused guest to return for at least three years from the incident (i.e., whether or not the guest is convicted of a crime). Another key distinction is that Seattle hotels need only report allegations of guest misconduct and cooperate in investigations if consented to by the employee. Additionally, non-complaining employees assigned to an accused guest’s room need only be warned of the accused’s presence and advised to proceed with caution.

More generally similar measures have passed or are under consideration in Miami Beach, FL, Long Beach, CA and Oakland, CA. Notably, a California statewide mandate failed in committee, in part due to complaints of expansive employee accommodations. Nevertheless, some hotels have considered implementing panic device systems regardless of legal obligation.

Employer Takeaways

While questions about the burden and expense of compliance and the general panic device landscape may be answered over time, it is clear that this type of legislation has become a hot topic among state and local legislatures. The amended bill now before the New Jersey Senate will likely go through another round of committee review and possible amendments before the full Senate votes on the bill. The original bill was also introduced in the New Jersey Assembly in September, but remains pending in committee. As such, questions about the substance and general fate of the New Jersey mandate remain outstanding.

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.

By Danielle M. Kays and Erin Dougherty Foley

Seyfarth Synopsis: For the first time since the enactment in 2008 of the ADA Amendments Act (ADAAA), which broadened the definition of a disability under the Americans with Disabilities Act (ADA), the Ninth Circuit addressed, and expanded, the definition of an individual who is “regarded-as” disabled under the act. The court held that a plaintiff establishes he is “regarded-as” disabled if he shows “an actual or perceived physical or mental impairment,” regardless of whether the impairment actually limits, or the employer perceives the impairment to limit, a major life activity. The decision reminds employers to proceed carefully when making personnel decisions regarding employees with injuries or impairments, even if they may not rise to the level of a disability.

Case Background

In Nunies v. HIE Holdings, Inc., the plaintiff Herman Nunies was a former delivery driver for HIE Holdings in Honolulu, who had requested a transfer to a part-time warehouse position. The parties disputed the plaintiff’s stated reason for his transfer request, but the plaintiff claimed he requested the transfer to a less-physical position because he had developed shoulder pain. Plaintiff alleged that the Company initially approved the transfer but subsequently denied it and forced him to resign after he reported his shoulder pain to his employer. The employer cited budget cuts as the reason for denying the transfer and advised plaintiff that his position no longer existed, but evidence showed the employer had an open warehouse position at the time of plaintiff’s termination.

Plaintiff filed a lawsuit asserting disability discrimination under the ADA and state law, alleging that his employer forced him to resign because of his shoulder injury. The employer moved for summary judgment, arguing that plaintiff could not assert a prima facie case of disability discrimination because he was not disabled under the ADA, among other arguments. The district court agreed, granting summary judgment to the employer. In its decision, the district court held that plaintiff did not have a disability and was not “regarded-as” having a disability under the ADAAA, because plaintiff did not provide any evidence that the employer subjectively believed that plaintiff “was substantially limited in a major life activity.” The district court further held that the plaintiff did not establish an actual disability because he “did not identify any major life activities that were affected by his impairment” — indeed, plaintiff had continued to work without apparent issue or limitation. As further evidence that plaintiff was not disabled, the district court held that plaintiff had not demonstrated that his shoulder pain substantially limited any activity compared to most people in the general population.

The plaintiff appealed, joined by the Equal Employment Opportunity Commission (“EEOC”) as amicus curiae. The EEOC explained it offered its position to the appellate court because other district courts in the circuit had “failed to heed” the broader “regarded-as” disability definition promulgated by the ADAAA.

The Ninth Circuit’s Ruling

The Ninth Circuit agreed that the ADAAA expanded the scope of the ADA’s “regarded-as” definition and that some district courts continued to rely on pre-ADAAA case law to apply the older, narrower “regarded-as” disabled definition. Specifically, the district court in the Nunies case had erroneously concluded that Plaintiff had failed to meet his burden of presenting evidence that his employer “subjectively believed that Plaintiff is substantially limited in a major life activity.” Based on the plain language of the ADAAA, the appellate court held that plaintiff was not required to present evidence that the employer believed that plaintiff was substantially limited in a major life activity. Instead, the plaintiff could simply show that the employer terminated plaintiff “because of” his knowledge of the shoulder pain, regardless of whether the employer actually perceived the shoulder pain as a disability, and regardless of whether or not the shoulder pain amounted to an actual disability. Notably, the Ninth Circuit’s expansion of the scope of the “regarded-as” disability definition follows decisions in the First, Fifth, Sixth and Tenth Circuits which similarly defined the definition under the ADAAA.

Additionally, although the employer had argued that the ADAAA “regarded-as” disabled definition does not apply to “transitory and minor impairments,” the appellate court noted that this exception is an affirmative defense with the burden of proof on the defendant, and not the plaintiff. The court held that the employer had not set forth evidence to establish plaintiff’s shoulder pain was transitory and minor.

Therefore, the appellate court held that Plaintiff had established a genuine issue of material fact as to whether the employer regarded him as having a disability.

The Ninth Circuit further reversed the circuit court’s holding that the plaintiff could not establish his shoulder pain was an actual disability. Specifically, the appellate court found that because plaintiff could neither work nor lift more than 25 pounds nor lift his arm above chest height without pain, he had identified two major life activities affected by his impairment. The court noted an impairment “need not prevent, or significantly or severely restrict the activity” in order to substantially affect a major life activity. Therefore, the court found an issue of fact as to whether plaintiff had an actual disability.

Takeaways for Employers

The protections under the ADA, the ADAAA, and state law are ever-evolving and sometimes nebulous. As disability-related issues continue to increase in the workplace, employers should proceed carefully when considering personnel decisions involving individuals with potential injuries or impairments, as they may meet the “regarded-as” disabled definition. This decision is an important reminder to employers to ensure that any adverse actions taken against such employees are based on legitimate, non-discriminatory and non-retaliatory reasons, and to carefully document the business reasons for those adverse actions.

If you have any questions regarding this area or need assistance evaluating personnel decisions relating to employees with medical afflictions, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

 

By Adam R. Young and Craig B. Simonsen

Seyfarth Synopsis: New state and federal laws and rules require employers to have compliant phones systems for 911 direct dialing and E-911.

Most large employers maintain multiline phone systems at their workplaces.  Along with emergency action plans and evacuation procedures, employers must take affirmative steps to ensure that employee phones provide adequate safety protections in the event of an emergency.  Some jurisdictions impose numerous regulations on those systems and their ability to dial 911, requiring onerous notifications, procedures, labels, and 911 dialing features.  And those requirements are constantly evolving, as 2018 marked a seminal shift in 911 regulations.

The federal government has passed a new law requiring that phones dial 911 directly, and has directed the Federal Communications Commission to undertake a rulemaking on Enhanced 911 regulations, also called “E-911.”  These federal and state developments may require employers to take action to ensure compliance, and revamp their emergency safety equipment and procedures.

New Federal Law Requires Direct Dialing of 911

In recent years, nine states and New York City have adopted rules requiring phones to be able to directly contact 911.  This means that any caller who dials 9-1-1 will be connected with emergency services, without a prefix (such as dialing 9 first) or going through an operator.  In 2018, President Trump signed a bipartisan new law which requires any phone to be able to directly contact 911, 47 U.S.C. § 623(b).  The federal law applies to all types of newly installed multiline phone systems.  State and local laws may require existing systems to be revamped by a compliance date.  Accordingly, employers replacing their phone systems or installing new systems will need to comply with these requirements.  Employers who operate phone systems that require an operator or dialing to get an outside line should review their systems and ensure that they comply.

Federal E-911 Legislation May Be Forthcoming

Federal and state governments have begun to require Enhanced 911 services for employers who use multiline phone systems.  States have enacted Enhanced 911 or E-911 requirements to multiline phone systems.  E-911 means that the telephone system automatically will transmit phone number information or specific location information (building, floor, office number) to emergency services when a caller dials 911.

These restrictions vary by state, but can require employers to notify employees regarding E-911 capabilities, train employees on 911 dialing procedures, and provide written instructions near phones.  Some also require that the phones provide E-911 capabilities in terms of number and/or location information.  The President signed H.R. 4986 § 506 (March 7, 2018), which requires the Federal Communication Commission to consider adopting rules that ensure a “dispatchable location” is conveyed with 911 calls.  The statute requires the FCC to conclude a proceeding to consider adopting rules E-911 location rules by September 23, 2019.  Employers should monitor this process closely, as it could result in another unfunded mandate for employers to comply with E-911.

Employers should begin work now to ensure that their phone systems comply, and that their employees are properly trained on the new and pending federal and state laws and regulations.  For additional information on workplace safety, emergency procedures, and emergency equipment, please follow our blog, or feel free to contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Workplace Policies and Handbooks Teams.

By Dawn Reddy Solowey and Latoya R. Laing

Seyfarth Synopsis: The 8th Circuit recently held that while a request for a religious accommodation  may qualify as a protected activity, it is not necessarily “oppositional” so as to give rise to an opposition-clause retaliation claim under Title VII. Employers considering requests for religious accommodation should, despite this Circuit’s narrow decision, proceed carefully when considering any request.

Last year we blogged about a Minnesota District Court’s decision holding that a religious accommodation request did not constitute a protected activity under Title VII. The plaintiff appealed the ruling.  On November 13, 2018, the Eighth Circuit Court of Appeals affirmed, holding that it could not “categorically” resolve whether a request for religious accommodation is oppositional activity for a retaliation claim, but that it would affirm the ruling for the employer on the summary judgment record in this case.

Case Background

The case is EEOC v. North Memorial Health Care, Civ. No. 17-2926 in the U.S. Court of Appeals for the Eighth Circuit. The Equal Employment Opportunity Commission (EEOC) sued the employer hospital, claiming that the employer had retaliated against an applicant by withdrawing a conditional job offer because she asked for a scheduling accommodation for her religious beliefs as a Seventh Day Adventist. On March 15, 2017, the employer moved for summary judgment. The employer argued that the retaliation claim failed on grounds including that a religious accommodation request did not amount to protected activity as a matter of law. The District Court agreed, granting summary judgment in favor of the employer.  The EEOC appealed, joined by amicus curiae that included the American Civil Liberties Union (ACLU).

What Did the Court Rule?

The 8th Circuit explained that it was considering an “issue of first impression,” namely whether “requests for religious accommodation are protected activity under Title VII’s anti-retaliation provision.”  The Court held that “the issue cannot be resolved categorically,” but affirmed the district court’s ruling on the summary judgment record in this case, holding that the applicant’s simple request for a religious accommodation was not “oppositional” activity as required for Title VII retaliation claims.

Title VII makes it unlawful for an employer to discriminate against an employee or an applicant for employment because the employee opposed an unlawful employment practice. To establish a prima facie case of retaliation, the EEOC was required to show that the applicant opposed an unlawful practice.

The Court relied on the Supreme Court case Crawford v. Metro. Gov’t of Nashville and Davidson Cty. 555 U.S. 271 (2009), emphasizing that when an employee communicates to the employer a belief that the employer had engaged in discrimination, that communication almost always constitutes the employee’s opposition to the activity.

However, in this case, the Court held that the applicant’s actions were not oppositional because “merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.”

While the Court generally construes the statute “broadly to cover opposition to employment actions that are not unlawful,” the plaintiff’s request for religious accommodation, by itself, “did not reflect, much less communicate, any opposition or resistance to any North Memorial employment practice.”

The Court explained that at least for religious accommodation claims, “protected activity” is not always “oppositional activity.”  The Court held that in some circumstances, a religious accommodation request could form the basis for a retaliation claim, such as if an employer denied an accommodation on the grounds that it was not in fact based on a religious practice and fired the employee for making the request.  However, when the employee or applicant requests a religious accommodation, and the request is denied on the grounds that it cannot reasonably be accommodated absent undue hardship, there is no basis for an opposition-clause retaliation claim.  Instead, the employee or applicant’s exclusive claim is a disparate impact or disparate treatment claim under Title VII.

Finally, the Court noted that the applicant’s original EEOC charge had included a claim of disparate treatment.  However, the EEOC’s enforcement action alleged only unlawful retaliation.  Thus, while the Court held that the applicant’s “Title VII remedy as an unsuccessful job applicant was a disparate treatment claim under [the statute] for failure to reasonably accommodation,” there was in this case no disparate-treatment claim before the Court.

What Does This Case Signal for Employers Defending Retaliation Litigation?

In defending a retaliation claim, an employer should consider whether, in the relevant jurisdiction, there is a viable argument in its jurisdiction that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.  This issue was one of first impression in the Eighth Circuit, and different courts are likely to reach different conclusions.  As always, it is important to keep in mind that the law governing retaliation claims under Title VII may differ from that under state and local laws.

What Does This Case Signal for Employers Managing Accommodation Requests?

Employers should follow a conservative approach in responding to religious accommodation requests.  Employers would be wise to assume — until there is settled, binding law to the contrary in the relevant jurisdiction on identical facts  — that a request for religious accommodation may be construed as protected activity under Title VII.  As a practical matter, this means that an adverse action that an employer takes against an employee, and that post-dates a religious accommodation request from the employee, may be challenged as retaliatory by the employee and/or the EEOC.  Further, an unlawful denial of a religious accommodation request can give rise to a disparate-treatment discrimination claim, even if there is no available retaliation claim.

Best Practices for Responding to Religious Accommodation Requests

Best practices for employers to respond to religious accommodation requests, and minimize the risk of retaliation liability, include:

  • Set up a policy and process for managing religious accommodation requests in a manner that is consistent and compliant with the jurisdiction’s law. Ensure that managers and HR are trained in the policy and process, and that employees know how to request a religious accommodation.
  • Review each religious accommodation request individually on a case-by-case basis. You can read our Roadmap for Responding to a Request for Religious Accommodation here. Given the complexities of this area of the law, it is wise to enlist the help of counsel who specializes in this area.
  • Ensure that any adverse actions taken against an employee, including those subsequent to a religious accommodation request, are based on legitimate, non-discriminatory and non-retaliatory reasons, and that the business reasons for those adverse actions are well-documented.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

The Employment Law Lookout blog is taking a holiday break this week, but will resume delivering insightful discourse and updates on the day’s most pressing workplace issues next week.

As a reminder for employers we have previously posted these blogs on holiday safety topics and behaviors: Have Yourself a Safe, Undistracted, and Accident Free Holiday, Don’t Let Too Much Eggnog Ruin Your Office Holiday Party: Tips to Limit Employer Liability at Company Parties , and Ring in the New Year, But Don’t Invite the Constable.

In the meantime, we want to wish all of our readers, contributors, and editors a safe and happy (and warm) Thanksgiving holiday.  We hope you are able to spend time with family, friends, and loved ones and rest assured knowing that we’ll be on the lookout for more management insights to bring you as we move into the year end and into 2019.

Thank you and Happy Holiday.

By Mark A. Lies, II,  Adam R. Young, and Daniel R. Birnbaum

Seyfarth Synopsis: The flu and cold season is now approaching. Employers face concerns about how to respond to highly infectious diseases when an employee reports such illness. Seasonal illnesses have the potential to infect employees and shut down operations because of employee absence due to illness. Employers must consider methods to keep their employees healthy and productive while not running into legal pitfalls.

With the return to winter weather, the cold and flu season is once again upon us. This creates challenges for employers. Seasonal illnesses have the potential to spread throughout the workforce, and negatively impact operations. Companies should create a plan to respond to infectious diseases, including how to limit the spread of the disease within the workplace without violating any applicable laws or regulations. Employers should also encourage employees to get flu shots and practice good hygiene at work. Please click on this article for more detailed guidance for employers on dealing with infectious diseases during flu and cold season.

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 Policies and Handbooks Team.