August 2008 Archives

August 27, 2008

Surveillance of Employees on FMLA Leave


An article ran last week in the National Law Journal about employers conducting surveillance on employees whom they suspect of abusing FMLA leave ("Spying Employers Raise Legal Hackles," by Tresa Baldas). The article included quotes from employer and employee advocates, predictably coming down on opposite sides of the issue. Employer attorneys claim they need to protect themselves from dishonest employees; employee attorneys counter that surveillance violates employee privacy and discourages employees from taking leave.

I think this type of surveillance is out of line, legally and as a practical matter. It fosters a relationship of distrust between workers and management, it wastes time and money, and it risks legal action for harassment, retaliation, and privacy violations (imagine what -- or who -- could be caught on a surveillance tape). It's also extremely distasteful: an investigator lurking on the sidewalk, taping employees in their front yards, picking up their kids at school, going to the grocery store. This shouldn't be the price of exercising a legal right. I know that employers feel taken advantage of by employees who abuse the FMLA, particularly for intermittent leave, but the law itself provides avenues for reining in these employees -- medical certifications, re-certifications, and second opinions, for example. These methods are neither perfect nor quick. They are a compromise that attempts to balance employer needs and employee rights.

I'll even go out on a limb and say that I think most people agree that surveillance is distasteful. So why are employers doing it -- and winning some of these lawsuits? Because bad facts make bad law. An employee calls in sick, claiming she can't work because she's taking new medication, spends the day mowing lawns for her husband's business, then calls in sick again that evening with a migraine (Vail v. Raybestos, 7th Cir. 2008). An employee claims to be too sick and dizzy to drive to work, but spends his time off at the gym and doing errands (Colburn v. Parker Hannifin, 1st Cir. 2005). After an employee's request for vacation is denied, he takes FMLA leave for a knee injury instead -- the same injury for which he took FMLA leave at the same time the previous year, after another vacation request was denied -- and goes to Las Vegas (Crouch v. Whirlpool, 7th Cir. 2006). In these cases, the method used to catch the employee gets lost because the employee's deception seems so clear.

But what about employees who are surveilled while on legitimate leave? I haven't seen a case where, for example, an employee takes leave for a knee injury and is taped being helped into the car by his male lover, thus catapulting him out of the closet at work. Or an employee's children and some of their friends are taped running through the sprinklers in their birthday suits, while the employee keeps an eye on them while trying to recover from a migraine on the front porch. Or an employee is taped attending a political rally for an unpopular candidate, buying condoms or adult diapers at the store, crying out of pain and frustration after recent surgery, or doing any of the many things that all of us would rather keep private. With facts like these, employer surveillance suddenly seems like a clear violation of societal norms.

August 11, 2008

EEOC Issues Guidance on Religious Discrimination and Accommodation

The Equal Employment Opportunity Commission (EEOC) recently issued a new section of its Compliance Manual on religious discrimination, along with a fact sheet of questions and answers and a best practices guide. These documents were issued partly in response to a rise in charges of religious discrimination, which have doubled in the last 15 years (although they still make up a small fraction of the total charges the EEOC receives -- 3.5%, according to the agency).

Religion is unique among the characteristics protected from discrimination. Religion isn't really a characteristic, like race or gender; it's a belief system. And unlike other protected traits, which are sometimes protected precisely because they are "immutable," religious belief is deeply personal and can change over time. A person might become more religious, convert from one religion to another, or abandon faith entirely. A person might strongly feel him- or herself to be part of a religion, yet not share all of its beliefs or follow all of its teachings. Also, unlike other protected traits, religion sometimes requires particular behavior while adherents are at work, such as prayer; observing certain holidays; wearing specified items, types of clothing, or hair styles; or professing one's faith to others.

All this adds up to potential workplace conflict, especially when you consider that atheism is also considered a "religion" for purposes of anti-discrimination law. What if an employee's religious beliefs require him or her to "spread the good news" to customers and coworkers -- who complain about it? What if an employee's religious garb creates a potential safety hazard or simply violates the company's uniform rule? What if an employee requests an accommodation for a claimed religious belief that you've never heard of, refuses to provide a Social Security number because it constitutes "the mark of the beast," or asks to be excused from a management training course featuring a New Age speaker?

The EEOC's Manual attempts to clarify some of these issues. Among other things, the new Manual provides guidance on:

What constitutes a religious belief. Once an employee goes beyond recognized religious affiliations, it can be hard for an employer to determine whether the employee's belief is actually religious. Vegetarianism, particular styles of dress or hair length, and views on appropriate gender roles, for example, could each be part of a system of religious practices or could simply be a matter of personal opinion or preference. As the Manual points out, personal beliefs are not protected by Title VII; that privilege is reserved for religious beliefs, defined as those that are sincere, meaningful, occupy a place for the believer "parallel to that filled by...God," and concern "'ultimate ideas' about 'life, purpose, and death.'"

Discrimination based on third party bias. The Manual makes clear that employment decisions based on customer preference or prejudice -- for example, against employees who are perceived as Muslim -- are discriminatory. Oddly, the Manual also says that it would be okay for employers to require Muslim applicants to undergo more extensive security or background checks if required by federal law or Executive Order, but then goes on to say that no such law or Order exists, as far as it knows.

Reasonable accommodation and undue hardship. Employers are legally required to accommodate an employee's religious belief, practice, or expression. The Manual gives extensive guidance on accommodations that might be reasonable for an employee who requests a scheduling change (to observe religious rituals or a Sabbath), an exception from usual dress or grooming requirements, or breaks at work to pray. The Manual indicates that employers would be well-advised to follow the "interactive process" required by the ADA in working with employees to come up with a suitable accommodation. Although the Manual notes that any expense beyond administrative costs is considered an undue hardship under Title VII, it also states that an employer might be expected to pay premium wages (for example, overtime pay to another employee) as a temporary accommodation for an employee who needs time off for religious reasons.

Religious expression. The Manual cites a survey indicating that 19% of employees proselytize to coworkers. It also discusses other forms of religious expression in the workplace, from an employee who wears a button with an anti-abortion message and graphic photograph of a fetus or a patch saying "Jesus is Lord," to employees who wish to greet customers with "Have a Blessed Day," "Praise the Lord," or "in the name of Jesus of Nazareth."

The Manual doesn't do much to resolve the current legal bind of employers here: These are considered forms of religious expression entitled to accommodation. On the other hand, other employees may find these statements harassing -- and the employer itself might legitimately feel that such statements give the public the wrong idea about the company's own values and mission. There are no bright lines: Unlike racist or sexist comments, which an employer can and should stop whether or not they've reached the level of legal harassment, religious comments are not considered legally inappropriate. In fact, they are legally protected to some extent, and an employer who prohibits them absent complaints or other evidence of trouble could face a successful legal challenge.

August 5, 2008

Glowing Reference + Dangerous Former Employee = Potential Liability

Giving references for an employee your company fired can be a very tricky business. If your company goes beyond the standard "name, rank, and serial number" approach -- typically, confirming only the dates the employee worked for the company, positions the employee held, and perhaps salary information -- you might be worried about a lawsuit from the former employee. Even though many states have laws that protect former employers from defamation claims based on a good-faith reference, you have to be careful not to go beyond information you know or reasonably believe to be true.

But courts are finding that it's just as bad to give a falsely positive reference for an employee who is actually dangerous. More than ten years ago, for example, the California Supreme Court found that an employer that chooses to give a detailed reference for a former employee has a duty not to misrepresent the facts. In that case, a female student at a California middle school claimed she was sexually molested by the vice principal, and sued his prior employer based on its glowing letter of recommendation; in fact, he had been accused of sexual misconduct and impropriety with students in his former job, as well. The Court allowed the case against the former employer to go forward.

A recent case from the Fifth Circuit Court of Appeals has facts that are similarly dreadful -- and a similar outcome. In that case, an anesthesiologist was fired for abusing Demerol on the job; his termination letter stated that his employment had been terminated for cause for reporting to work in an impaired condition and putting patients at risk. Nonetheless, he received positive reference letters from two of the doctors in the partnership that had fired him, stating that he would be an asset to any anesthesia service, was an excellent clinician, and was recommended highly. No mention was made of his drug abuse.

In his new position, the anesthesiologist failed to resuscitate a patient who was in for routine surgery; the family of the patient -- who ended up in a permanent vegetative state -- sued the new employer. The new employer, in turn, sued the former employers for misrepresentation. The Court of Appeals found that the former employers had no stand-alone duty to disclose the employee's drug abuse; once the doctor-owners provided a reference, however, they had a duty not to affirmatively misrepresent the facts. Because their referral letters were false and misleading, they could be partially liable for the patient's injuries.

For information on what to tell prospective employers about a former employee, see Nolo's article Giving References for Former Employees.