What is a reasonable accommodation for workers and job applicants?

April 27, 2015

Employers are required, in certain circumstances, to provide reasonable accommodations for qualified employees and job applicants with disabilities. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to enable disabled people to perform the essential functions of a job for which they are applying or in which they are working. That must be done unless it would impose an undue hardship on the employer.

Generally, an employer is obligated to make a reasonable accommodation under the ADA only for an employee’s or applicants’ known or obvious disability. The ADA places the initial burden on the worker to inform his employer of a need for an accommodation for his disability. The worker is required only to suggest the existence of a plausible accommodation, the costs of which don’t clearly exceed its benefits.

A reasonable accommodation must be examined on a case-by-case basis to determine whether it will be effective and whether it will constitute an undue hardship on the employer. Employers should start the accommodation process by discussing it with the disabled worker.

Accommodations can range from making existing facilities accessible, job restructuring, acquiring or modifying existing equipment, or reassigning to a vacant position. The employee with a disability must be provided with the tools and environment to enable him to accomplish the job.

Basic responsibilities of employees and job applicants with disabilities

An individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation” when requesting an accommodation. That doesn’t mean, however, that an employer is required to provide the change, it is merely a first step.

Employer response to a request for reasonable accommodation

After receiving a request for a reasonable accommodation, the employer and the individual should engage in an informal process to clarify what he needs and to identify the appropriate reasonable accommodation.

Generally, an employer must not ask whether a reasonable accommodation is needed when an employee has not asked for one. An employer should initiate the reasonable accommodation interactive process, however, without being asked to if it: (1) knows the employee has a disability, (2) knows or has reason to know that the employee experiences workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.

Undue hardship

An employer may refuse to grant an accommodation to an employee or applicant if the requested accommodation isn’t reasonable or would cause an undue hardship on its business. Undue hardship refers not only to financial difficulty, but also to reasonable accommodations that are unduly extensive or disruptive or those that would fundamentally alter the nature or operation of the business. Note: If an employer wants to claim undue hardship they must be prepared to show proof that it was truly an “undue hardship!”

NOTE: California employers have stricter guidelines under the Fair Employment & Housing Act (FEHA). Under FEHA the employer must engage in an active discussion regarding a reasonable accommodation if the employer even “perceives” an employee to have a disability.

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Former Employees Sues Because the Employer Refused to Re-Hire!

April 20, 2015

A Court of Appeals recently considered the issue of whether a company could be liable for refusing to hire someone because he filed an unemployment claim. A former employee claimed that a Wal-Mart’s refusal to rehire him after he filed an unemployment claim related to a prior termination wrongfully violated the state’s public policy. The Court disagreed. It ignored (more or less) the issue of the public policy at issue, and instead focused on the nature of the employment decision at-issue — a refusal to hire.

The former employee’s appeal presents the question of whether the law recognizes a public policy cause of action for an employer’s wrongful refusal to rehire because an individual claimed unemployment benefits…. The common denominator in all the recognized public policy exceptions to at-will employment is the existence of an employment relationship. An employee’s right to be hired or rehired by an employer, on the other hand, has never been recognized as actionable, under common law on public policy grounds…. In fact, neither party had been able to provide a single decision from any jurisdiction enforcing a retaliatory failure to rehire claim in state common law or public policy, absent some other statutory basis.

While this case was decided under Michigan law, it has implications beyond that state. As the opinion points out, there exist no cases from any jurisdiction recognizing a failure to hire claim under state common law or public policy.

While you might not be presented with the issue of refusing to rehire an ex-employee who filed an unemployment claim, you may have other reasons not to hire someone. For example, you might decide that a potential employee is tainted because he or she filed a lawsuit against a previous employer. If the lawsuit raised issues protected by the employment discrimination statutes, for example, those same statutes’ anti-retaliation provisions likely protect the employee from failure to hire on that basis. What if, however, the prior lawsuit involved something other than protected activity in its own right (e.g., a common law tort such as invasion of privacy, defamation, or intentional infliction of emotional distress)? If a prospective employer locates the old lawsuit on the Internet and refuses to hire someone it perceives as a potential problem down the road, this case suggests that the employer might be off the hook for any potential liability stemming from the refusal to hire. If state common law does not recognize a failure to hire claim, as this case suggests, then lawsuits against prior employers should be acceptable fodder for hiring decisions.

We receive calls regarding re-hiring on a consistent basis. I try to get clients to use common sense. Some have re-hired former employees who had been discharged for misconduct. Guess what? After they re-hired them, the person becomes a problem all over again. Please use common sense.

Note:  The Podcast this week discusses “Handbook Violations.” The segment can be found on ITunes just look for “Listen Up with Jim Potts” or go to www.pottsandassociates.com


A Legitimate Reason for Termination Can Prove Retaliatory Discharge

April 14, 2015

When employees are fired for misconduct, employers often think that they have an airtight defense to any charges of wrongful discharge. Not so! If the former employee can present evidence of pretext, the employee can prove the termination was for reasons other than misconduct.

In one case, the employer claimed that it fired an employee for cause. These were the reasons the company gave to support the discharge:

  1. Falsification of company records by under-reporting scrap
  2. Harassment of and retaliation against one the employees she supervised
  3. Violation of company safety policies on multiple occasions by driving an  uninspected personnel scooter and continually failing to wear a required safety vest, and
  4. Insubordination

The employee submitted proof in court that none of these reasons would warrant the termination of a supervisor on its own or together.

Evidence of Pretext The Court had several problems with the employer’s justification for the employee’s termination, not the least of which was that other employees who engaged in the same misconduct were not terminated.  As the Court put it:

As a threshold matter, the plaintiff has established that two of the defendant’s four proffered reasons for terminating the plaintiff – safety violations and her failure to timely resolve union health and safety complaints – do not typically warrant any formal discipline, let alone termination.

In addition, the charges which were raised because the former employee allegedly was insubordinate when she failed to timely resolve union safety complaints in a timely fashion were neither valid nor true.

According to the Court’s opinion:

Employees of the company testified that no supervisor could be expected to resolve nineteen health and safety complaints by a union representative within a twenty-four hour period, and that they did not know of anybody who had ever been disciplined or fired for failure to complete health and safety forms within 24 hours.

What’s more, the supervisor involved with the so-called insubordination testified that she could never recall asking the plaintiff to do something that she did not do.

Finally, as to  the incorrect scrap reports,  the evidence showed that the company had never previously treated misreporting scrap as a serious offense that would result in discipline or termination of a supervisor.

In sum, what you have in the case is evidence that employees who engaged in the same conduct as the former employee were not disciplined or terminated.  The other reasons given by the company for the discharge were simply not credible or plainly false.

The Court’s Conclusions

Although the company is entitled to terminate an employee for an actual violation of its internal policies, Plaintiff has introduced evidence suggesting that these actual violations were nothing more than trumped -up charges.

The Court also said:

When an employer waits for a legal, legitimate reason to fortuitously materialize and then uses it to cover up his true longstanding motivations for firing the employee, the employer’s actions constitute the very definition of pretext

Lessons Learned

When employees are not comparably disciplined for the same misconduct, or the reasons given for the discharge just don’t hold up to scrutiny, employers can find themselves in big trouble as far as liability is concerned.

Employers need to watch out for trumped up charges that don’t hold up to scrutiny.


Ninth Court Circuit of Appeals Holds Service Adivisors are Non-exempt

April 13, 2015

The following article was written by Jennifer Awrey, an attorney with Norton, Rose, Fullbright.

On March 24, 2015, the Ninth Circuit Court of Appeals held in Navarro v. Encino Motorcars, LLC, that service advisors are not exempt from the overtime requirements of the Fair Labor Standards Act (“FLSA”).  Specifically, the Ninth Circuit held that service advisors do not fall within the dealership salesperson exemption under the FLSA.

In Navarro, plaintiffs were service advisors who sued their employer, Encino Motorcars, for failure to pay overtime.  As service advisors, plaintiffs diagnosed required services and repairs for customer vehicles and recommended additional services and repairs not immediately needed.  Encino Motorcars defended against plaintiffs’ claims for overtime, arguing that plaintiffs were exempt from the overtime requirements of the FLSA.  The District Court agreed with Encino Motorcars, but plaintiffs appealed to the Ninth Circuit who overturned that ruling in favor of plaintiffs.

The Ninth Circuit held that plaintiffs were not exempt from the overtime requirements of the FLSA because they did not meet the Department of Labor’s regulatory definitions of “salesman, partsmen, and mechanic,” which limit the dealership exemption to salesmen who sell vehicles and partsmen and mechanics who service vehicles.  Technically, the plaintiffs sold car services,” and they did not “sell automobiles” or “service automobiles.”  Thus, the Ninth Circuit concluded that service advisors are not exempt from the FLSA’s overtime requirements.

Although the Ninth Circuit’s decision is contrary to decisions from other circuits, dealerships should carefully consider whether to classify service advisors as exempt given the ruling in Navarro.  Until there is additional guidance from the U.S. Supreme Court clarifying the law, the safest course of action is for employers to treat service advisors as non-exempt under the FLSA.


Transgender Discrimination is Now a Federally Protected Class Group

April 6, 2015

On March 30, 2015, the U.S. Department of Justice (DOJ) filed a complaint alleging that a State University (“University”) subjected a professor who is transgender, to unlawful sex discrimination in violation of Title VII.  The University denied the allegations.

The professor is a male-to-female transgender professor who worked as a tenure track Assistant Professor in the University’s English Department beginning in 2004.  In summer 2007, the professor notified the University that he (now she) planned to transition from male to female and would begin presenting as a woman at work for the 2007-2008 academic year.  According to the complaint, the professor was told her “transgendered lifestyle” offended the religious beliefs of the University’s Vice President for Academic Affairs.

The professor submitted an application for tenure in October 2009.  Both her Department Chair and the Promotion and Tenure Review Committee recommended that the professor receive a promotion to Associate Professor and tenure.  According to the complaint, the Dean and Vice President for Academic Affairs opposed the professor’s application for promotion and tenure, but refused to explain their reasons.  The professor did not receive tenure, and the complaint alleges that the Vice President refused to allow the professor to reapply the following academic year, because it was not in “the best interests of the university.”   The University ultimately denied the professor’s grievances and terminated her employment because she failed to attain tenure by the end of her seventh year of employment.

The filing by the DOJ is significant, because it represents a change from its prior stance that Title VII’s prohibition against sex discrimination did not cover gender identity bias.  Now, the EEOC, DOJ, and other federal agencies take the position that Title VII prohibits discrimination based on gender identity, including transgendered status.

Please understand the times are changing! Approximately fourteen states already have protection for sexual orientation and all of them have it for gender. It is important for managers and supervisors to educate their staff and ensure an environment free from discrimination.

NOTE: Starting this week I will start sending a “Mid-week” one or two sentence reminder about the little things that we forget that can get you into trouble. It is designed to help keep managers and supervisors focused. It will take seconds to read and will help keep you “out of trouble!” Plaintiff attorneys are capitalizing on your mistakes. Be vigilant, be mindful, and be careful not to violate the rights of your employees. It will cost you!