3 AMERICANS WITH DISABILITIES ACT MYTHS

adasigning2

Although the Americans with Disabilities Act (“ADA”) was enacted in 1990,  employers and employees still hold certain misconceptions about the law and its requirements.  Here are three common myths surrounding the ADA:

MYTH #1 - The company can condition an employee’s return to work on the employee providing a “full medical release” without restrictions.

REALITY:  The company can require a medical release before an employee can return from a medical leave.  But, it cannot demand that the release be “restriction free.”  Rather, if the employee presents  restrictions with the release, the company must determine if it is able to provide a reasonable accommodation to the employee to enable the employee to perform the job’s “essential functions.”

MYTH #2 - If an employee’s disability is controlled by medication(s), the employee is not disabled.

REALITY:  The amendments to the ADA make clear that an employer cannot take into account the mitigating effects of medication or equipment on the employee’s medical condition in assessing whether the employee has a disability.  The employee can still be considered disabled even if the medication or device adequately controls the employee’s symptoms.

MYTH #3 - A company can enforce a leave of absence policy that provides an employee will be terminated if unable to return from a medical leave after a specific number of weeks or months.

REALITY:  Although a “leave of absence” can be a reasonable accommodation, the Equal Employment Opportunity Commission (“EEOC”) takes the position that an employer cannot “automatically” terminate an employee if the employee is unable to return to work after a specific period of time (e.g. 6 months or a year).  Rather, the EEOC views such “blanket” policies as violating the ADA’s requirement that the employer treat each accommodation situation on an individual basis.  Instead, the employer would have to establish that no other reasonable accommodation exists before terminating the employee.

 

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

 

 

Sue Early And Sue Often

“You got to know when to hold ‘em. Know when to fold ‘em.
Know when to walk away. Know when to run.”

Kenny Rogers, “The Gambler”

As certain as death and taxes, each day in this great country someone, somewhere is filing a head scratchingly stupid lawsuit.  “Sue early and sue often” seems to be the mantra in our litigious society. The latest example comes from Sin City, where a gambler is suing a casino to recover his massive gambling losses. 

The gambler’s argument?  He was too drunk to know what he was doing.  As Dr. Seuss might say, he drank in the limo on the way to the casino, he drank playing Keno*, he drank at dinner, he drank hoping to be a winner, he drank at the gaming table, he drank because he was able.

The gambler admits he was drunk for almost 3 days straight, and lost hundreds of thousands of dollars in his “blackout” state.  Now he wants his money back.  His theory?  The Las Vegas casino kept providing him “free” drinks and loans to gamble with when they knew he was blitzed.  In other words, he was the sloppy drunk overserved victim.

Personal responsibility?  That’s for losers, man!  Bad choices?  Give me a break (and a refund)!

So listen to Kenny Rogers - the man is a Grammy winning singer/songwriter, actor, roasted chicken magnate, and suspected plastic surgery aficionado after all.  Don’t gamble that your company won’t get sued.  You will, and often for ridiculous reasons.  (Remember the $2.9 Million Dollar McDonald’s lawsuit over spilled coffee?  Coffee is hot?  Who knew?)

Increase the odds of your company winning an employment lawsuit  by following sound human resources practices.  First, don’t hire losers.  Review employment applications carefully, contact employment references, and do background checks.  Second, administer clear written policies in a non-discriminatory manner. Third, document all significant personnel decisions.  Fourth, honestly communicate the reasons for termination.  And finally, don’t drink on the job.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
: @HRGeniusBar
@wagelaws

*Not sure if he played Keno, but it rhymes.

Texas-Sized Employment Terminations Via Twitter

Human Resources Managers know the drill when they want to terminate an employee.  They bring the individual into a private room, tell him he is terminated, cite a couple of reasons for the termination decision, maybe give him a termination letter, and escort him out of the workplace.  Thereafter, the termination decision and reasons for it are typically only shared with those in management with a legitimate “need to know.”

But as they say, “everything is bigger in Texas,” including apparently, the way one announces an employee’s termination.  And in “BIg D” they have taken it to a new gunslinging level.

Dallas, Texas Police Chief  David O. Brown routinely announces the terminations of his law enforcement officers via his Twitter account, @DPDChief, to his 7,000 plus “followers.”  Limited by Twitter’s 140 characters, he then posts lengthier explanations for the termination on  Facebook for several thousand “friends.”

One recent example:

“I have terminated ######### for public intoxication, damaging a person’s property, and making offensive contact with a person.”

(I omitted the name – blame the lawyer in me).

Part of me likes the boldness of the strategy, and the stated goals of ensuring government accountability and transparency.  It also sends a strong message to other employees not to engage in the same conduct.  And the Dallas Police Department is doing some very creative things utilizing social media as a law enforcement strategy to catch bad guys.

But is it a sound personnel practice?  Let’s see…

Humiliating the employee to thousands of strangers?  Check.  Inviting a potential defamation lawsuit?  Check.  Locking in the employer’s position in future litigation in 140 characters or less?  Check.  Giving the City’s lawyers nightmares?  Check.  (Of course, many people would say giving lawyers nightmares is not necessarily a bad thing).

I would assume the Chief vets his Twitter posts with his legal counsel before their mass distribution.   But as anyone who uses Twitter knows, typos occur, mistakes can be made, and words can be misinterpreted.  And in employment lawsuits, words matter.

Chief Brown found out the dangers of Twitter recently:

Chief David O. Brown ‏@DPDChief  Mar 11

Today I terminated Officer Edgar Garcia for being involved in a disturbance resulting in his arrest for assault Family Violence.

Chief David O. Brown ‏@DPDChief  Mar 11

Correction: the officer terminated was Officer Edgar Garcia Martinez  

I hope the Police Department doesn’t employ an “Officer Edgar Garcia.”

From a purely legal perspective, the risks of such a practice seem to greatly outweigh any potential benefits.  Many times I have defended employers in lawsuits where it was clear the employee pursued litigation simply because he/she felt “humiliated” in how the termination was handled.  The employee was angry, feeling either the termination meeting was unduly harsh, or embarrassed by being escorted off the premises in full view of co-workers.

Now imagine the employee’s motivation to sue after having his termination and the reasons for it publicly aired to thousands of people.  Oh, and the employer still needs that little thing called “evidence” to back up the assertions in the tweet.

As any cowboy will tell you, “when you mess with the bull, you sometimes get the horns.”  Save yourself a legal goring – don’t post terminations or the reasons for them on social media sites.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

Better Call Saul

“You were smart to call me. Now you just sit back, relax and let a professional take over.”             Saul Goodman – Breaking Bad

Saul Goodman, the street smart, delightfully sleazy criminal defense attorney from the ground breaking television drama, Breaking Bad, had a simple but memorable marketing slogan to attract clients – “Better Call Saul.”  Unfortunately for most of his clients (but good for Saul), they only called after they had gotten into trouble with the law.  It then became all about damage control.

But one client, Walter White, the cancer stricken high school science teacher turned virtuoso meth lab cook, often did call and consult with Saul before he took certain actions that he knew could potentially result in serious legal consequences.  Perhaps it stemmed from his scientific background, but Walter would often discuss options with their potential outcomes and associated legal risks with Saul before ultimately settling on a course of action.

Human resources managers would be well served to follow Mr. White’s lead in one limited respect.  (NO, I repeat, NO, not cook meth nor plan criminal acts).   Companies can reduce the possibility of significant monetary damages and legal expenses from employment law claims by investing a little time and money in consulting with their legal counsel about difficult employment situations before litigation is commenced. Below are just a few of scenarios where the “call to Saul” (or whoever your employment lawyer is) should be made:

  • An Employee (Or His Attorney) Makes A Personnel File Request.  The employee is not asking for her personnel file to check for spelling errors, or to make sure her emergency contact information has been updated.  The employee wants ammo, or better yet, the actual “smoking gun.”  The request is the legal equivalent of a warning shot across the bow.  An employment attorney can advise on how to respond to the request, including what not to provide, as well as establishing parameters to ensure the preservation of files and emails for future litigation.
  • The Employer Wants To Terminate An Employee Who Falls Into One Or More Protected Classifications.  As there are almost 100,000 discrimination charges filed with the Equal Employment Opportunity Commission (“EEOC”) every year, a company who wishes to terminate an employee who falls into a “protected classification” such as age, race, gender or disability faces potential liability.  As literally every employee falls into some protected classification, the company should make sure that it has all of its legal ducks in a row before termination.  Talk through the facts, evidence and reasons for the termination with employment counsel, paying special attention to how the company has disciplined similarly situated employees not in the same protected classification(s).
  • The Employee Mentions The “L Word”.  Frequently employees claim that they are contacting a “lawyer,” or intend to file a “lawsuit.”  Although many times this is simply bluster, sometimes they actually follow through.  Regardless, the simple mention of these words greatly increases the likelihood of the employee filing a retaliation claim in the event the company takes an adverse employment action against him.  Any discipline or discharge that comes shortly after utterance of an “L word” will likely trigger the filing of a retaliation claim.  Bottom line – when an employee starts talking about his lawyer, you should probably call yours.
  • The Government Comes Knocking.  If you receive a letter, phone call or surprise visit from a government investigator representing OSHA, the Department of Labor, the EEOC, or OFCCP, contact your employment lawyer immediately.  Often, steps can be taken to narrow down the government’s burdensome requests for information, and secure adequate time to gather relevant information in order to prepare a coherent response.

Just like an ounce of prevention can be worth a pound of cure, a billable hour spent on one of the tricky employment situations described above could avoid potentially costly legal consequences.  Take a page out of Walter White’s (cook)book and make the call.

Mitchell W. Quick,
Attorney/Partner – Michael Best & Friedrich LLP
Suite 3300, 100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter@HRGeniusBar @wagelaws

Unemployed – the Newest Protected Classification

Buried in the rush of the holiday season, on December 11, 2013 the City of Madison, Wisconsin amended its Equal Opportunities Ordinance to include “unemployment” as a classification protected from employment discrimination.   (A similar effort failed at the Federal level a couple of years ago).

In rather circular fashion, Madison’s Ordinance defines “unemployment” as “the status of not having a job or employmnt [sic], being available for work and seeking employment.”  Section 39.03(2)(oo).

Thus, companies with operations in Madison may not refuse to hire an individual simply because the person is unemployed.  Nor can they post advertisements (or job descriptions) that list as an eligibility requirement that the applicant be currently employed.  Employers are also prohibited from discriminating against unemployed applicants in terms and conditions of employment, so presumably they could not offer lower starting pay to unemployed applicants.

The Ordinance does throw employers a small bone.  It somewhat clarifies that unemployment “does not mean, nor is it unlawful discrimination to inquire into or to consider or act upon, the facts and circumstances leading to the the [sic] status or condition of unemployment.” (Yes, there are two typos in the Ordinance’s two sentence definition of “unemployment,” supporting the notion that this change was hastily made).

Beyond the typos, however, the problems with the Ordinance are numerous.  First, the Ordinance affords the temporary status of being unemployed the same legal protections as  immutable characteristics such as race, gender, national origin, and disability.

Second, (and perhaps incredibly), the status of “unemployment” is now the 27th “protected classification” under the Ordinance, joining other narrow protected classifications like “victim of domestic abuse.”  (What employer either refuses to hire or fires someone because of that?).  In short, employers in Madison face more legal compliance land mines.

Third, and most importantly, the Ordinance creates more questions than it answers, such as:

(1) Is an applicant who has been unemployed a mere one or two days at the time she applies for a job protected from discrimination?  Or does the applicant have to be unemployed for a period of several months? (It appears there is no minimum time limit).

(2)  Is an employer now, as a practical matter, prohibited from asking on its job application whether the applicant is currently employed, or for the name of the applicant’s current employer?   These routine employment application questions may result in the disclosure of information that the applicant is actually unemployed, thus putting the employer on notice, and giving the applicant a theory in which to file a discrimination claim if not hired.

(3) Does the Ordinance allow or prohibit employers from taking into consideration that an applicant had long periods of unemployment in the past, but is currently employed?  (It would seem to allow this).

(4)  Is an applicant who is currently employed at the time of application, but then becomes unemployed while the application is pending, considered “unemployed” and protected from discrimination under the Ordinance? (It would seem the individual would be  protected).

I have posed these and other questions to the City of Madison’s Department of Civil Rights Equal Opportunities Division, but have not received answers as of yet.  Stay tuned.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

Just Another Day

How did you celebrate Human Resources Professionals Day?  Human Resources Professionals have a tough job because of the many hats they have to wear, including:  rule enforcer, policy drafter, law follower, negotiator, confidante, investigator, advocate, interviewer, recruiter, and morale booster (to name but a few).  It’s not glamorous work, and sometimes involves highly emotional, sticky situations.  Despite this, it is often underappreciated in the corporate world, with “no news is good news” being the unstated measure of success.

So do yourself a favor – take a mental break, go for a walk, or enjoy your favorite beverage.

And then get ready for the next day of challenges.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

The NLRB and Photo/Video Bans in the Workplace

The National Labor Relations Board just weighed in on another employer’s social media policy.   Two key holdings:  (1) the company had a duty to bargain with the union over the implementation of the policy; and (2) the company’s ban on employees taking pictures and videos on the company’s premises was unlawful.  See my full article here.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws