Employment Law Update with Amazing Predictions!

1
Employment Law Update with Amazing Predictions!

• Presented by Lisa Hudson
• Assistant Attorney General
• Arizona Attorney Generals Office
• Views expressed by the presenter are not
  official opinions of the Arizona Attorney General

2
Proposed ADA Regulations from EEOC

• EEOC must implement regulations consistent with
  the ADA Amendments Act of 2008
• Proposed regulations have been issued. Comment
  period expired on November 23, 2009.
• Examples of major life activity expanded, even
  beyond the Act.
• Interacting with others added to the list (this
  was not included in the ADA Amendments Act).

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• Major bodily functions as life activities
• Expands beyond the ADA Amendments Act
• Functions of the immune system, special sense
  organs and skin normal cell growth and the
  digestive, genitourinary, bowel, bladder,
  neurological, brain, respiratory, circulatory,
  cardiovascular, endocrine, hemic, lymphatic,
  musculoskeletal and reproductive functions.

4

• Substantially limits
• Use a common sense standard not a medical one.
• Even impairments that last less than six months
  can meet the definition.
• Certain impairments will almost certainly meet
  the definition of a disability
• These include deafness, blindness, intellectual
  disability, missing limbs, mobility impairments
  requiring the use of a wheelchair, autism,
  cancer, cerebral palsy, diabetes, epilepsy, HIV
  or AIDS, multiple sclerosis, muscular dystrophy.

5

• Also includes psychiatric disorders such as major
  depression, bipolar disorder, post-traumatic
  stress disorder, obsessive-compulsive disorder,
  and schizophrenia. The list is not exhaustive.
• Working as a major life activity.
• The current regulations and case law provide that
  the inability to work a particular job is not a
  disability unless the employee is unable to
  perform a class of jobs or a broad range of jobs
  in various classes.
• In a significant change, the proposed
  regulations provide that an impairment
  substantially limits the major life activity of
  working if it substantially limits an
  individual's ability to perform, or to meet the
  qualifications for, the type of work at issue.

6
Rohr v. Salt River Project, 2009555 F.3d 850
(9th Circuit)

• Is Mr. Rohr a qualified individual with a
  disability?
• Type-2 Diabetesrequired dietary restrictions,
  testing of his blood, and medications that had to
  adjusted around his eating
• Due to condition, could not pass a respirator
  test required by SRP.
• District Court of Arizona said not a disability
  and not qualified individual.

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Rohr v. SRP, Cont.

• 9th Circuit reversed and said send it to a jury
• Limitations on eating, scheduling of food,
  adjusting of medications could be a substantial
  limitation of a major life activity
• Respirator test required by SRP not necessarily
  an essential function
• NOT required by OSHA standards
• SRP did not consider other testing methods
• Use of a respirator may not have been necessary
  for Mr. Rohr to do his job

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Amazing ADAA Predictions

• Case law and employer focus will move from
  determining whether someone has a disability, to
  the issue of accommodation.
• We will see more challenges to essential
  functions.
• Employers will see an increase in requests for
  accommodation of psychological and psychiatric
  disabilities.

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Tips

• Update job descriptions and essential
  functions.
• Carefully analyze any physical requirements or
  tests for positions. Are they really required to
  perform the essential functions?
• Review your procedures for requesting
  accommodation and engaging in the interactive
  process. Streamline and reduce delays.

10
FMLA- Intermittent Leave Traps

• Carefully evaluate certifications from health
  care providers to make sure that you have
  sufficient information to grant or deny the
  request.
• Its OK to verify authenticity.
• Once granted, dont forget to follow up
  periodically.
• Is the leave being used consistently with the
  certification?
• Have you calendared the end date or
  recertification date?

11
Smith v. Hope School, 560 F.3d 694(7th Cir. 2009)

• Ms. Smith worked at a school for kids with
  developmental disabilities
• After being assaulted twice by the kids, she
  became very anxious and fearful
• She was moved to the Dieticians Office (no youth
  contact)
• Leaves work from stress one day soon after
  transfer gets physician certification for FMLA
  leave from her doctor Smith has severe
  recurrent muscle tension and neck and arm pain
  secondary to trauma (assaults) suffered at work

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• Smith adds to it herself below doctors writing
  plus serious depression. Then submits
  certification to employer.
• Employer calls Dr. because handwriting doesnt
  match. Dr. I never diagnosed depression.
• FMLA denied due to falsified certification.
  Smith refuses to come back to work, is terminated
  for absence without leave.

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• Note she is not fired for falsifying physicians
  certification just for being absent without
  approved leave.
• She sues under FMLA. Her point even without her
  addition to the physician certification, it
  would have qualified her for FMLA.
• Court disagrees with her. Why should employer
  have to figure out what is true and what is false
  on a physicians cert.? It contained false
  information, was invalid, and the employer was
  within its rights to deny her FMLA leave request.

14
Carmona v. Southwest Airlines, ___ F.3d ___, 2010
WL 1010592 (5th Cir. March 22, 2010).

• Carmona was a flight attendant for Southwest
  Airlines.
• Suffered from psoriasis and psoriatic arthritis
• During flare ups that occurred 3-4 times per
  month and lasted 3-4 days per occurrence, Carmona
  had difficulty walking or moving around without
  great pain.

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FMLA Intermittent Leave

• Carmona received intermittent leave under FMLA
  from 1998 until April 2005. At that point, he
  had not worked the requisite 1,250 hours in the
  previous year to qualify for FMLA.
• Carmona was terminated in June 2005 when he
  accrued excessive attendance points under
  Southwests attendance policy.

16
ADA Claim

• Carmona sued under the ADA and obtained a jury
  verdict in his favor.
• Southwest argued that Carmona was not a
  qualified individual because he could not
  comply with Southwests attendance policy. In
  other words, regular attendance is an essential
  function.

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Surprising result!

• The court rejected Southwests argument that
  attendance was required, because Southwest had
  granted Carmonas prior intermittent FMLA
  requests.
• If Southwest had denied Carmonas request for
  intermittent FMLA leave, it might have had a
  strong argument that as a matter of law Carmona
  was not qualified . . .

18
Question

• On what basis could Southwest have denied the
  Plaintiffs FMLA requests for intermittent leave?
• Lisa Hudsons opinion The court got this wrong.
  An employer may not deny intermittent FMLA leave
  based on an attendance policy or requirement.

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Amazing Prediction!

• As government employers continue to struggle with
  budget issues, they will see an increase in
  requests for intermittent FMLA leave.
• Employees may feel a greater need to obtain
  protection for frequent absences, lest they be
  used to justify a termination of layoff.

20
FLSA Hot Issues

• Donning and doffing- When do preliminary and
  post-liminary activities constitute compensable
  work time?
• Bamonte v. City of Mesa, ___ F.3d ___ (9th Cir.
  March 25, 2010) (Police officers not entitled to
  compensation for the time it takes to put on and
  take off uniform and other required gear. They
  were permitted to perform these tasks at home.)

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• Allen v. McWane, ___ F.3d ___ (5th Cir. January
  8, 2010) (Manufacturing plant workers not
  entitled to compensation for donning and doffing
  protective gear where custom and practice was not
  to pay under CBA.)
• Foods Sepulveda v. Allen Family, ___ F.3d ___
  (4th Cir., December 29, 2009) (FLSA allows unions
  and employers to negotiate compensability of time
  it takes to change clothes. Poultry processors
  not entitled to compensation for donning
  protective gear).

22
Amazing Prediction

• With furloughs and layoffs, we will see an
  increase of claims related to off clock work.

23
FLSA Tips

• Revisit time-keeping and overtime policies.
• Make sure that you are carefully tracking and
  enforcing work hours for non-exempt employees,
  especially telecommuting employees.
• Make sure policies regarding overtime are clear,
  communicated, and enforced!

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Social Networking SitesEmployment Considerations

• Employees using social networking sites
• Employees should be aware that the standards of
  conduct and all confidentiality rules apply.
• E.g., Twittering, blogging, or updating Facebook
  status with specific comments about work.
• All employees, especially supervisors, should be
  concerned about maintaining professional distance
  from co-workers, supervisors, clients, and
  professional colleagues.

25
Pietrylo v. Hillstone Restaurant Group, 2008 WL
6085437 (D. N.J. 2008).

• Group of servers established an invitation only
  MySpace page to vent about any BS we deal with.
  The page invites users to let the st talking
  begin.
• A manager accessed the site while at the home of
  one of the members.

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Claims

• Violations of federal and state wiretapping laws-
  Questions of fact as to whether managers were
  given access or whether it was coerced.
• Termination in violation of public policy-
  Termination of member employees did not violate
  free speech as matters discussed did not
  implicate matters of public concern.
• Invasion of privacy- Question of fact as to
  whether managers had voluntary access.

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Flip side- Using social network sites to screen
applicants

• Read and do not violate the terms of use for
  the site. Some forbid use for commercial
  purpose.
• FCRA applies if third party searches these sites.
• Consider that you are just as likely (if not more
  so) to learn things that you do NOT want to know
  (e.g., applicant is pregnant, has disabled
  children, is a member of a particular political
  party, etc.).

28
Spanierman v. Hughes, 576 F.Supp. 292 (D. Conn.
2008)

• High school teacher terminated (non-renewed)
  based on MySpace communications with students.
• Created profile for students that contained
  inappropriate content and chatting.
• Court held the nonrenewal did not violate the
  teachers First Amendment rights.

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Amazing Prediction!

• Social networking is just a fad. People will
  grow tired of it after they are contacted by all
  of their old high school friends, only to realize
  that there were good reasons for not keeping in
  touch in the first place.

30
Crawford v. Metropolitan Govt of Nashville129
S.Ct. 846 (2009)

• Anti-retaliation provisions of Title VII
• Forbids retaliation against employees who
  oppose workplace race or gender discrimination.
• Ms. Crawford (30 year employee) was interviewed
  by an internal H/R employee investigating a
  complaint by another employee against the
  Employee Relations Manager, Dr. Hughes.
• Ms. Crawford had not made a complaint herself
  against Mr. Hughes, and was simply answering
  questions when asked during the investigation
  have you witnessed Mr. Hughes engaging in
  sexually harassing behavior?
• You better believe it

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• On one occasion Ms. Crawford Hey, Dr. Hughes,
  whats up? Dr. Hughes, grabbing his crotch
  You know whats up.
• He repeatedly put his crotch up to her
  window.
• On one occasion he entered her office and
  grabbed her head and pulled it to his crotch.

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• Shortly afterward, Ms. Crawford was fired .
• Metro it was for embezzlement.
• Crawford it was retaliation for opposing
  sexual harassment.
• District Court granted summary judgment against
  her and 6th Circuit upheld this
• She didnt oppose sexual harassment she was
  just answering questions when asked by someone
  investigating another persons complaint.

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• Supreme Court reversed and remanded back to lower
  courts
• Crawfords statement to investigator was a
  disapproving account of sexually obnoxious
  behavior toward her by a fellow employee.
• Crawford gave no indication that Hughess gross
  clowning was anything but offensive to her.
• When an employee communicates to her employer a
  belief that a form of employment discrimination
  (such as harassment) has occurred, this virtually
  always constitutes opposition to the activity.

34
Ricci v. DeStefano, 129 S.Ct. 2658(U.S. 2009)

• In 2003, New Haven (Conn.) Fire Department
  administered exams for promotion to 8 vacant
  Lieutenant and 7 vacant Captain positions
• Over half of white officers passed the test.
  Black officers had a 32 and 38 passage rate,
  respectively.
• Based on top scores, all 8 Lt. positions would be
  filled by whites. 7 Capt. positions would be
  filled by whites with possible exception of 2
  Hispanics.
• Concerned of a disparate impact, and possibility
  that tests were racially biased, City threw out
  the test scores.

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• 20 officers who would have qualified for the
  promotion list sued the city
• District Court and Court of Appeals ruled for the
  City of New Haven
• Doesnt the City have the right to reformulate
  its test if it has real concerns the test is
  discriminatory?
• The City had no good alternative as it faced a
  discrimination lawsuit from Black firefighters if
  it had upheld the test.

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• Supreme Court, in 5-4 decision, ruled for the
  Plaintiff firefighters and against the City
• Justice Kennedy the City engaged in express,
  race-based decisionmaking.
• This constituted disparate treatment of the white
  and Hispanic firefighters.
• Disparate treatment can only be justified if it
  is supported by a strong basis in evidence that
  it will avoid an impermissible disparate impact.
  There was no strong basis of evidence that this
  examination would have resulted in an
  impermissible disparate impact.

37
Amazing Supreme Court Prediction!

• President Obama will nominate a replacement for
  Justice John Paul Stevens. The new nominee will
  be controversial and will not receive Republican
  support.

38
Prowel v. Wise Business Forms, 579 F.3d 285 (3rd
Cir. 2009)

• Which is it sexual orientation discrimination
  (perfectly legal) or gender discrimination (NOT
  legal)?
• Mr. Prowel works at a factory in Pennsylvania
  where he is openly gay and an effeminate man
• Testified he had a high voice and did not curse
  was very well-groomed was neat filed his nails
  crossed his legs walked and carried himself in
  an effeminate manner drove a clean car talked
  about things like art, music, interior design
  and pushed the buttons on his encoder machine
  with pizzazz!!!! (Exclamation points added by
  me.)

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• Constantly subjected to comments called
  rosebud, princess, pink feather tiara put on his
  desk
• Also subjected to other harassment graffiti on
  wall of mens room claiming he had AIDS, note on
  his desk saying he would burn in hell.
• Eventually laid-off and sued for gender
  discrimination
• Employer argued, and District Court agreed, his
  suit was a claim for sexual orientation
  discrimination, not protected by Civil Rights
  laws. Case dismissed.

40

• Third Circuit reversed evidence that some of
  his harassment was for his failure to conform to
  gender stereotypes. This is a form of sex
  discrimination and is protected by Title VII.
• Cited Price Waterhouse v. Hopkins (1989)
• Female executive denied promotion because she
  wasnt feminine enough (sexual orientation
  never raised as an issue in this case)
• Sex stereotypes are at the heart of
  discriminatory treatment
• Prowell case is trickier where does gender
  stereotyping end and sexual orientation
  discriminationwhich is legalbegin?

41
Gender stereotyping

• Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st
  Cir. 2009).
• Plaintiff Chadwick claimed that she was denied
  promotion due to stereotypes about women who are
  mothers of young children.
• Chadwick was up for promotion against another
  female candidate.

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• Chadwick had more seniority, a higher evaluation
  score, and was already performing some of the
  duties.
• Chadwick also had an 11 year old and 6 year old
  triplets.
• Claim based on three statements
• Decision-maker learned of the triplets two months
  before the decision, to which she stated, oh my-
  I did not know you had triplets. Bless you!

43

• During an interview with one of the panelists
  (all female) the interviewer asked how Chadwick
  would responded to an employee who did not
  complete a project on time. Unhappy with
  Chadwicks answer, she said, Laurie, you are a
  mother. Would you let your kids off the hook
  that easy . . .
• When Chadwick asked the decision maker why she
  didnt get the job, the decision maker responded
  . . .

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• It was nothing you did or didnt do. It was
  just that youre going to school, you have the
  kids and you just have a lot on your plate right
  now. She also shared that the three
  interviewers would all feel overwhelmed if they
  were in her position.
• Decision maker later says that this statement was
  to soften the blow, and that the decision was
  based on the interview.

45

• unlawful sex discrimination occurs when an
  employer takes an adverse job action on the
  assumption that a woman, because she is a woman,
  will neglect her job responsibilities in favor of
  her presumed childcare responsibilities.
• The essence of Title VII in this context is that
  women have the right to prove their mettle in the
  work arena without the burden of stereotypes
  regarding whether they can fulfill their
  responsibilities.

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Amazing Prediction!

• We will see more claims involving gender
  stereotyping. These will include claims by women
  alleging discrimination based on care-giver
  responsibilities. They may also include
  discrimination claims by gay and lesbian
  employees claiming discrimination because they do
  not fit male and female stereotypes.

47
EEOC Statistics FY08- FY09
Category FY 2008 FY 2009 Percent Change
Total 95,402 93,277 (2)
Race 33,937 33,579 .4
Retaliation 32,690 33,613 1.7
Sex 28,372 28,028 .3
Age 24,582 22,778 (1.4)
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Category FY 2008 FY 2009 Change
Disability 19,453 21,451 2.6
National Origin 10,601 11,134 .8
Religion 3,273 3,386 .2
Equal Pay Act 954 942 --
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Amazing Prediction!

• You will all have a year free from EEOC charges
  and employment lawsuits.
• P.S. - The previous predictions may or may not
  be completely wrong. The presenter assumes no
  personal or professional liability for the
  accuracy of these predictions and may or may not
  possess actual superpowers. Participants rely on
  these predictions at their own risk.