March 2011 Archives

March 28, 2011

Final ADAAA Regulations Issued

Last Friday, the EEOC issued its long-awaited final regulations interpreting the Americans with Disabilities Act Amendments Act (ADAAA). The Commission released proposed regulations interpreting the ADAAA and asking for public comment about a year and a half ago. After reading the more than 600 comments that were submitted in response to the proposed regs, the EEOC made some key changes and additions. (You can read my previous post on the proposed regs here.)

Here are a handful of the changes I found interesting:

List of disabilities. Actually, I don't think this is much of a change, although others disagree. The proposed regulations included a list of impairments that "will consistently meet the definition of disability." Previously, courts had interpreted the ADA to require an individual assessment of the way a particular impairment affected a particular employee. Many commentators objected to the proposed list, arguing that the regulations should still require an individual analysis. The final regulations changed the wording -- in a way that many employer advocacy groups applaud -- but to me, it looks like the effect will still be the same. Rather than saying these impairments will "consistently meet" the definition, the final regulations say that they will, "as a factual matter, virtually always be found" to be disabilities, which means that "the necessary individualized assessment should be particularly simple and straightforward." Then, the final regulations list the exact same impairments that appeared in the proposed regulations.

"Regarded as" disability claims. An employee can be protected by the ADA because the employee has a disability (termed "actual disability" cases by the final regs); because the employee has a record of disability, or because the employer incorrectly regards the employee as having a disability. The ADAAA clarified that an employee making a "regarded as" claim isn't entitled to a reasonable accommodation (which makes sense, as the employee isn't claiming to have a disability), but also need not prove that the employer regarded him or her as having a disability as defined by the ADA -- that is, an impairment that substantially limits a major life activity. The final regulations state that an employee who doesn't need a reasonable accommodation and isn't challenging the employer's failure to provide such an accommodation can proceed under the rules for "regarded as" claims. In other words, an employee who is claiming discrimination (rather than failure to accommodate) doesn't have to prove that he or she has a disability.

Substantially limits. In keeping with the ADAAA directive that the EEOC should redefine "subtantially limits" in favor of broader coverage, the final regulations state that the term is "not meant to be a demanding standard." They also clarify that a person can be substantially limited in performing a major life activity even if that person is not prevented, or significantly restricted, from performing that activity. The final regulations indicate that the condition, manner, and duration of the person's performance of the activity should be examined. For example, can the person perform the activity only for a brief period? Must the person expend significant effort to perform the activity? Is it painful or otherwise difficult for the person to perform the activity? Do the side effects of medication or other treatment make it harder for the person to perform the activity?  

Transitory and minor impairments. The ADAAA states that an employee may not make a "regarded as" disability claim based on transitory and minor impairments. The final regulations clarify that this is an affirmative defense, to be proved by the employer, which must show that the impairment is both minor and transitory, in fact. It's not enough to show that it's either minor or transitory, nor that the employer mistakenly believed it to be minor and transitory.

Working as a major life activity. The proposed regulations included a lengthy discussion of the major life activity of working. This section was unpopular with employer advocacy groups -- and was removed from the final regulations. It's still discussed in the Appendix to the regulations, but in abbreviated form. (Many examples that appeared in the proposed regs were similarly consigned to the Appendix in the final version.)

March 24, 2011

Supreme Court: Oral Complaints Trigger Retaliation Protection

In yet another win for an employee claiming retaliation, the Supreme Court decided this week that an employee's oral complaints of violations of the Fair Labor Standards Act could protect that employee from employer retaliation. (The case is called Kasten v. Saint-Gobain Performance Plastics Corporation.)

Kevin Kasten claimed that he had made numerous oral complaints within the company -- to his supervisor, his lead operator, the operations manager, and human resources personnel -- about the location of the company's time clocks, which were situated between where the employees had to don their protective gear and where the employees actually had to work. This meant that employees were not paid for the time they spend putting on their gear at the beginning of their shift and taking it off at the end, in violation of the Fair Labor Standards Act (FLSA). 

In a separate lawsuit, a federal court found in Kasten's favor on the underlying complaint about the time clocks. The lawsuit that made it to the Supreme Court was about Kasten's retaliation claim: He alleged that he was disciplined and ultimately fired because of his complaints to the company. The company countered that Kasten was fired because he refused to use the time clocks. It also argued that Kasten couldn't claim retaliation, because the FLSA protects only employees who "file" a complaint, which must be done in writing. 

The Supreme Court found for Kasten. Consulting the dictionary, other provisions of the statute, and other sources, the Court found that the term "file" doesn't necessarily require a document. The Court also found that requiring employees to put complaints in writing would thwart the statute's protective purpose by discouraging complaints from those who are less educated, illiterate, or simply overworked. On the other hand, the Court agreed with the employer that the employee's complaint had to be sufficient to put the company on notice of the problem in order to trigger the law's retaliation provisions. So the Court came up with this standard:

To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.  

In an odd twist, the Court explicitly declined to address whether the employee must make a complaint to a governmental agency to be protected, even though the case involved an employee who complained only to the employer. (In other words, if the employee must complain to an agency, Kasten doesn't have a retaliation claim.) Apparently, the employer hadn't kept this argument alive properly on appeal, so the Court wasn't required to consider it. And in the majority opinion, Justice Breyer argued that there was no need for the Court to resolve this question, because it wasn't necessary to the Court's decision in the case. Still, it's a fairly large issue to leave undecided, especially when the claims of the actual employee in the case depend on how it's resolved. 

March 14, 2011

Department of Labor Program Connects Employees to Lawyer Referral Service

A few months ago, the federal Department of Labor (DOL) began its Bridge to Justice program. This program refers certain employees who have filed complaints with the DOL to the American Bar Association's attorney referral service. These complaints involve alleged violations of the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). 

Once an employee files a complaint, the DOL may attempt to settle the employee's claim, conduct an investigation, and even pursue litigation against the employer. However, due to limited resources, the DOL can't investigate and resolve every one of the more than 35,000 complaints it receives each year. And, the DOL has its own enforcement priorities, areas in which it is more likely to be aggressive in pursuing complaints. Right now, those priorities are heavily focused on contingent workforce issues: nontraditional work relationships, including employee leasing, use of independent contractors, and franchising, which can create confusion about the nature of the employment relationship, the identity of the employer, and what rights employees in these arrangements are owed. 

The DOL has said that it might inform an employee about the ABA referral system immediately after the employee files a complaint, if the employee indicates a desire to pursue a private cause of action against the employer. The DOL might also refer the employee at any point when the agency decides not to continue its efforts at conciliation, investigation, or litigation on the employee's behalf. Once this decision is made, the DOL will send the employee a letter with contact information for the referral system. Along with the letter, the employee will receive a form to request certain documents from the DOL's file, including documents the employee has provided, the employee's own statement to the DOL, and the DOL's calculation of back wages owed the employee, if applicable. An employee who wants other documents from the DOL's file must file a request under the Freedom of Information Act (FOIA). 

Employers will be informed if the DOL decides not to pursue an employee's claims further, but will not be specifically told that the DOL has given the employee information on the referral service. Employers are not entitled to receive the documents available to employees absent a FOIA request. 

This program is brand new, so it remains to be seen what effect it will have on FMLA and wage and hour litigation. Presumably, the DOL decides not to pursue at least some of these cases because the employee's claims are weak, which means a lawyer is likely to decline the case as well. Also, employees don't have to take their claims to the DOL in the first place. Because there's no "exhaustion" requirement under the FMLA or FLSA, employees can bypass the agency and go straight to a lawyer if they believe their rights have been violated -- and many employees with strong claims do. I'll be interested to see statistics, once they are available, on whether this program increases the number of FMLA and FLSA cases filed -- and won -- by employees who have been through the DOL process. 
March 4, 2011

Do You Check Facebook When Hiring?

Do you check Facebook or other social networking sites for information about job applicants? If so, you're not alone: A survey by Jobvite Inc. shows that more than 80% of companies do. But there are legal risks to using social networking sites as a screening tool. 

As a recent column in Fortune points out, using Facebook and other social networking sites in hiring can lead to discrimination claims. When you view someone's page and posts, you may well see information that you are not allowed to consider in hiring, such as race, religious or political beliefs, and so on. (The column uses the great example of discovering that an applicant belongs to a number of groups for expectant mothers.) If you decide not to hire that person, you may be accused of basing your decision on this information that you would otherwise not be privy to or allowed to use in the hiring process.

The article also discusses the possibility of disparate impact discrimination claims, based on the fact that Latinos and African Americans are disproportionately represented on LinkedIn, the job networking site most commonly consulted by hiring managers. 

Employees and job seekers who use social networks are routinely told to mind those privacy settings. In other words, if you want to keep your online persona personal, use privacy controls to make sure that your information can be seen only by those you have approved. But even this may not be enough to ward off prying potential employer eyes: In an incident publicized a few weeks ago by the ACLU of Maryland, Robert Collins was asked, during a recertification interview for his job at the Maryland Department of Corrections, to provide his Facebook user name and password. Then Collins got to sit and wait while his interviewer read his page and all of the posts by his friends and family. 

Regular readers of this blog know of my ongoing fascination with the breakdown of public and private lives enacted by social networking sites -- and particularly, the large numbers of people to whom the public nature of their posts becomes clear only after it's too late. (Examples from the recent news are people whose posts become evidence in criminal proceedings, including a woman who had a Facebook fight with a friend over a $20 loan for baby formula and diapers, which escalated to online threats and homicide, and a suspected bank robber who jumped to the top of the most wanted list when he found some time while on the lam to log on to MySpace and post, "on tha run for robbin a bank.")

But if someone takes the time and trouble to try to limit their social networking to their actual social network -- their family and friends -- there could be a better privacy argument to be made. Depending on the site's privacy controls and the care the user takes to limit access to personal information, there may well be a stronger expectation of privacy in what's posted on these pages. We'll have to see where courts come down on this issue. 
March 2, 2011

Supreme Court Victory for Employees in Discrimination Case

Yesterday, the Supreme Court issued its much-anticipated decision in Staub v. Proctor Hospital, in which an employee claimed that he was discriminated against because of his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). This case has been dubbed the "cat's paw" case, after an Aesop's fable. (Justice Scalia's opinion recounts the narrative details, if you're interested; they involve a cat, a monkey, some roasting chestnuts, and a moral about princes and kings). The upshot in these cases is that one person has the intent to discriminate, but another person -- without a discriminatory motive -- ultimately makes the decision to fire the employee. In this situation, courts have split on whether the employer is liable for discrimination. 

In the Staub case, the evidence showed that Staub's immediate supervisor and her supervisor were hostile to his service obligations as a member of the Army Reserves. Both had made negative comments about it and were described as "out to get" Staub. Staub was written up for violating a rule about leaving his work area; he claimed that there was no such rule and, at any rate, he had not left his work area. As part of the disciplinary action, Staub was required to check in with a supervisor whenever he left his work area. Several months later, one of the hostile supervisors reported to Buck, the vice president of HR, that Staub had violated this directive by leaving his work area without checking in; Staub again denied the accusation. Buck fired Staub for violating the requirement.  

A jury found in Staub's favor, but the federal Court of Appeals reversed this victory. The Court found that Buck wasn't motivated by discrimination. In this situation, the company could be held liable for discrimination based on the hostile motives of the supervisors only if Buck "blindly relied" on their information in firing Staub. Because Buck looked into the facts a bit before making her decision ( the Court of Appeal admitted that her "investigation" wasn't very thorough) and wasn't "wholly dependent" on the recommendations of the hostile supervisors, the Court of Appeals found that the company wasn't liable. 

The Supreme Court overruled this decision. It found that an employer is liable if:
  • a supervisor takes action, motivated by discriminatory bias, intending to cause an adverse employment action against the employee, and
  • the supervisor's action is a proximate cause of the action against the employee. 
Because Buck relied on the hostile supervisors' disciplinary write-up and version of the facts in deciding to fire Staub, rather than independently examining those facts -- and Staub's allegation that they were false and motivated by discrimination -- in making her decision, the company was liable. 

This is a big win for employees, not least because the language of USERRA also appears in Title VII and other laws prohibiting discrimination, so the effect of the case is likely to be far-reaching. Here are a few takeaways for employers looking to avoid cat's paw liability:
  • Investigate! Cat's paw liability depends on causation -- in other words, the person with the discriminatory motive must have some effect on the decision. If the decision maker independently examines the facts, the causal chain is broken. Presumably, the decision maker will uncover the discriminatory bias (and therefore decide not to take action against the employee at all). It wouldn't have been hard in the Staub case, in which these supervisors were apparently willing to tell everyone how they felt about Staub's military obligations.  
  • Train managers. In the Staub case, two supervisors appear to have had an ongoing campaign against an employee for wholly inappropriate and discriminatory reasons. A little training could have gone a long way here. If supervisors aren't making discriminatory statements and decisions in the first place, they won't be creating liability for the company. 
  • Think about settlement. For the unhappy employers that find themselves on the wrong end of a valid cat's paw claim, the Supreme Court's decision virtually guarantees that the case won't end early. Questions of motive (in a cat's paw case, the motives of at least two people: the allegedly discriminatory supervisor and the ultimate decision maker), cause, and the effectiveness of an investigation can be answered only by examining the underlying facts. If those facts are in dispute, the employer won't be able to end the case by winning a motion for summary judgment. Instead, the case will go to trial, where a jury will have to ultimately decide where the truth lies.