Jottings By An Employer's Lawyer

Monday, August 31, 2009

Employees in Limbo Land - EEOC Challenges the Solution

One of the great dilemma's for employers are employees who go on long term leaves of absence. Absent some sort of policy that puts a deadline on how long that leave can be, I have seen employers with untold numbers of individuals who may or may not still be employees. My term for them: "lost in limbo land."

In Texas, where workers compensation retaliation has always been a major cause of action, the law has evolved so that a leave policy which results in termination after a fixed period of time, applied uniformly without regard to whether the leave of absence was based on a work related or non-work related injury, is a valid defense to those claims. For a long time, we have cautioned that the EEOC took the position, at least theoretically, that such policies could be a violation of the ADA. However, during the Bush administration, as far as I know, they did not pursue litigation to that effect.

But as we all know it's now a new day and Employment Law 360 ($) has the story of a recent lawsuit filed in the the Northern District of Illinois, that raises that specific issue, UPS Medical Leave Policy Violates ADA .

The key paragraph from the Complaint:

Since at least 2002, UPS has maintained an inflexible 12-month leave policy which does not provide for reasonable accommodation of employees with disabilities and which instead provides for termination of their employment, in violation of Sections 102(a)and 102(b)(3)(A) and (b)(5)(A) of Title I of the ADA, 42 U.S.C. §§ 12112(a) and 12112(b)(3)(A)and (b)(5)(A).

Accompanied by this message from Stuart J. Ishimaru, the acting Chairman of the EEOC:

This case should send a wake-up call to corporate America that violating the Americans with Disabilities Act will result in vigorous enforcement by the EEOC. The ADA has been the law of the land for nearly two decades now, and employers simply have no excuse for failing to abide by its provisions.

With all due respect to acting Chairman Ishimaru, its not all that clear. And in fact, in the story, UPS denies that it has an automatic policy, instead saying it has granted exceptions to its policy for employees who seek accommodation under the ADA, and the 12 month deadline is "not automatic or absolute."

Although there is a long way from a complaint to an appellate decision that would provide a definitive answer, this one at least initially appears to be set up to do so.

Hopefully, as this case wends it way through the judicial process, the courts will understand that this is an issue that has significant practical impact and one in which a ruling that does not take into account the need for employers to have control over who and who is not an employee in situations involving long term absences, could wreak considerable havoc.

Update 9.14.09: This is obviously not a one time idea by the EEOC, or at least the Chicago Region, as Employment Law 360 ($) is reporting a second employer has been sued for having a one year leave policy. See, EEOC Targets Supervalu In New ADA Class Action.This suit is also filed in the Northern District of Illinois but it also merited its own press release from the Commission.


Good post highlighting a frustrating issue for both employers and employees!

Important to double check with state law in addition to the ADA. Here in Washington state I think there is a very good argument that as long as there is a potential return date - even if in the distant future - an employer cannot terminate an employee while on long term disability leave. This is because of Washington caselaw which states that unpaid leave can be a reasonable accommodation to a disability.

UPS may be arguing that it does not have an automatic or inflexible policy, but I have seen similar language in *many* executive level employment contracts. And every time, I argue against the inclusion of that paragraph.

This will be an interesting case to follow - thanks for discussing it.
Thanks for highlighting an issue that is frustrating to both employers and employees!

I think it is also important to look at state law in addition to the ADA for answers to this question. Here in Washington, the state anti discrimination law has been interpreted by our courts to make it clear that leave without pay is a reasonable accommodation for a disability. So, I have argued that as long as there is a potential return to work date - even if it is far in the future - means an employer cannot terminate the worker while on leave.

UPS may be arguing that its policy is not automatic or inflexible, but I certainly have seen such policies written into many executive level contracts. I'm usually arguing to have the language removed.

This will be an interesting case to watch - thanks for discussing it.
It has always struck me funny as I have cautioned my clients that the EEOC takes this ridiculous position regarding extended leaves beyond the FMLA 12 weeks that the EEOC in essence says, "attendance at work is not an essential function of work." What a joke. Here's hoping the EEOC gets tossed on its can in this case. Twelve months of leave is plenty. Indefinite leave, by its very definition is unreasonable.
The EEOC got JPMorgan Chase & Co. to pay $2.2 million in 2006 (see online) and United Blood Services to pay $650K in 2001 (see online) due to inflexible leave limits.

The point is that the EEOC says the ADA requires an individualized assessment of "reasonable accommodation," rather than a blanket/uniform/inflexible rule.

Time off (including additional time off beyond a company policy or the 12 weeks of FMLA) is only a reasonable accommodation when it is likely to allow an employee to work; accommodations are only "reasonable" when they're likely to help an employee to work. There's no ADA requirement to accommodate employees to not work.
This is a very troubling issue for employers. Personally, I have always struggled with leave as a reasonable accomodation for a disability under the ADA (and under the state law counterparts), as there seems to be no consistent policy or rationale for when it is or is not required. The comments by the EEOC, however, are reflective of an administrator totally out of touch with the reality of employers.
Pom, the EEOC "got" the employers to pay b/c the employers were tired of the bleeding, not b/c the EEOC was right. Not one single case that I've seen has supported this position. Moreover, your "the ADA requires accommodation of leave if it allows an employee to return to work" is hogwash. The ADA applies to those with disabilities who can perform the essential functions of a job, with or without a reasonable accommodation.

Call me foolish, but doing the job is typically an essential function of the job. You can't be performing your job's essential functions while on leave.

The EEOC is attempting to legislate an indefinite leave leave requirement b/c the EEOC doesn't like the fact that FMLA limits leave to 12 weeks. Employers are getting killed by this government and nobody seems to care.
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Sunday, August 30, 2009

The Perks of a (Lifestyle) Blogger

When I started this venture more than seven years ago, maybe I should have chosen my topic more carefully. Although who could have predicted what blogging would become:
Blogger Test Drives An automaker is interested in providing vehicles for bloggers to test drive for a few days and to write about the experience. They’re not looking for auto bloggers, they’re looking for lifestyle bloggers who cover topics like travel, fine dining, and culture. They will arrange the drop-off and pick up of the vehicle. If you’re interested, please contact ......... with your blog name, content overview, URL, Technorati authority, and contact information. (From form email I received today.]
The first reader with a convincing argument connecting labor and employment law to, let's say luxury convertibles, get's the first ride!

Well, cars and employment law have a long history. Who could forget the NASCAR lawsuit ( or the boss who tried to convince a worker that she had won a "Toyota" which was really a "toy Yoda" (
Reason #1: You represent the auto industry in collective bargaining and you need to assess the quality of the product.

Reason #2: Because they are well paid, labor and employment lawyers purchase a large number of automobiles; as a blogger well known among labor and employment lawyers, you are perfectly situated to provide them with recommendations on auto purchases.
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Friday, August 28, 2009

The Latest On EFCA

The folks at EFCA Report who have been chronicling developments on this proposed legislation have their latest update, with some fairly definitive words from Senate Majority Leader Reid (D-NV) on EFCA: "Too Many Other Things on Our Plate". Of course, since the statement was made to the Las Vegas Chamber of Commerce, not a place where a pro-EFCA comment would likely be well received, it might be one of those statements that is subject to change.

Still, the other developments mentioned in their post, including the death of Senator Kennedy and the current state of Massachusetts law which, unless changed, means the earliest his replacement could be seated is the end of January, 2010, seems to me to make it more and more unlikely that EFCA will happen this year.

That of course does not mean that the battle for EFCA is over. One interesting question is whether other employment related legislation, ENDA or the Arbitration Fairness Act just to pick a couple, which most have felt were bottled up till EFCA was resolved stay there, or perhaps move closer to the front burner.

The big question of course is what happens in the longer term, the 2nd session of this Congress, or after the 2010 elections. I think more in organized labor may be resigning themselves that given how things have developed, they may need to keep their powder dry and see what the 2010 Senate looks like.

Depending on how that turns out, it is not impossible that EFCA proponents may someday count their blessings that this year's more effective than they had anticipated political opposition, the pitched battle over health care, the lack of a hard push by the Obama administration for their cherished goal and even the death of one of the bills' true champions, Senator Kennedy, might result in ultimately obtaining a bill that is closer to their desires than anything they could have obtained now.

Certainly not impossible, but likely?


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Monday, August 24, 2009

Social Media and the Employer

There is nothing startingly, or even really new, in this Q & A from the Birmingham Business Journal, What impact do you think the proliferation of online social media will have on human resource policies and employment law issues?. Although I must say it is going to be a brave employer who follows this advice, no matter how legally correct it is:

Employers must have a written policy against using recreational social media at work. It is a distraction, and the employee’s comments could incur liability for the employer based on defamation or laws prohibiting discrimination.

Just as a practical matter, if you are not going to follow it, it is probably better not to have a policy; and I doubt many companies can enforce such a policy these days.

But what really got my attention is just how much ink (well pixels really) this whole issue is attracting these days. I am a contributor, having given a couple of speeches, including national on-line programs for the ABA and other entities, and am scheduled for some more, but what this really makes me think is how much of a herd mentality we all have.

Probably the best comment came from a member of the audience at one of my speeches. He questioned why this was a continual topic, when there was never any law!

That may change, but as of now, there's lots more talk about the impact of social media on employment law, than there is either actual impact OR law.

Michael, there actually is quite a bit of impact, you just haven't seen much yet in litigation. For those of us dealing with employees on social networks from the in-house counsel side, social networking is taking up a great deal of our time as employees post items embarrassing to co-workers or the employer. We are having to train HR to understand that free speech comes with responsibility and that conduct which occurs away from work may still result in the loss of a job. I personally have dealt with dozens of employee terminations for things posted on social networks within the last 12 months.
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Friday, August 21, 2009

A Different Form of Health Plan

I am, as always it seems, behind on reading other blogs. And so probably the last thing I needed was to add another to my google reader list (a fairly recent change since Microsoft said it was no longer going to support onfolio, my all time favorite). But, just a couple of posts from Labor Law Guy an anonymous 'journalist' who says "labor law is just a current obsession in an otherwise undistinguished career" (which I heartily doubt), made me add another any way.

And amid all the ballyhoo about health care his report on a Japanese tax on obesity, Time to Tax Fatsoes Like They Do in Japan?, while no substitute for other ideas, might be something to think about.

Of course, I probably feel more favorably inclined since my new 'running' program seems to be causing a few of the accumulated pounds to fall away. Once that trend is gone, I will of course see the error of my ways in thinking that it could be an appropriate solution.

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Tuesday, August 18, 2009

Senator Harkin and the Secret Ballot

Although it does not look like that the card check provisions which would effectively eliminate the secret ballot for determining union representation will survive, at least in any EFCA type bill passed by this Congress, there is still some irony in the comments of Democratic Senator Tom Harkin, who is leading the push for the bill in making the following comment about his fellow Democratic Senator:

“Every two years the caucus could have a secret ballot on whether a chairman should continue, yes or no,” said Sen. Tom Harkin (D-Iowa), the chairman of the Senate Agriculture Committee. “If the ‘no’s win, [the chairman’s] out. “I’ve heard it talked about before,” he added."

The chairman who might be ousted by such a secret ballot election is Max Baucus, D-Montana who is cross-wise with Harkin on the details of the healthcare plan, according to the article in The Hill, Dems warn Baucus with gavel threat.

Apparently what's good for the goose is not necessarily good for the gander.


talk about hypocrisy!
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Mine Safety Commissioner Moves Back to Chair

Reprising a role she held in the Clinton administration, current member of the Mine Safety & Health Review Commission Mary Lucille Jordan has been designated by President Obama as the Chair, see announcement here. Before being appointed to the Commission, Jordan worked for the United Mine Workers for more than 17 years as an attorney.

Although it gets less publicity than its cousin, OSHA, MSHA is the counterpart for the mining industry and obviously in recent years has been in the headlines with some well publicized mine tragedies. The Mine Safety & Health Review Commission is the judicial body which reviews determinations made by ALJ's.

Although it is not an area I have had much experience with my firm is fortunate to have a large collection of MSHA lawyers in our Washington office including Michael Heenan, who has been "toiling in the mines" (well not literally!) for more than 40 years. It is one of those sometimes hidden specialties, but critical if you are covered by MSHA.


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Ignorance of the FMLA Is No Excuse; In Fact, It Could Be Evidence

That's just one lesson to be learned from the 10th Circuit's decision in DeFreitas v. Horizon Management Corp. (10th Cir. 8/14/09) [pdf]. In reversing the lower court's grant of summary judgment on DeFreitas interference with FMLA claim, the Court noted:

It would be eminently reasonable to believe that an employer who was ignorant of the FMLA—as Mr. Terry admitted he was before Ms. DeFreitas complained of her firing—would engage in the very practice that the FMLA was enacted to prevent [firing employees who missed too much work for medical care].

The opinion is also a good example of how employers can easily get trapped by their own policies and words. Here, although the claimed reason for termination was conduct uncovered while she was out on medical leave for 6 weeks, the Court found that:

  • she had progressed rapidly from entry level to Vice President within two years;
  • there were no written warnings for performance issues;
  • there were numerous written positive comments from various members of management about her performance;
  • although the company had a progressive discipline system that emphasized no employee would be terminated without receiving a written warning and being given a chance to improve, that did not occur;
  • the employer's handbook said that every terminated employee would be given an exit interview including putting in writing the reasons for the termination and the policies that have been broken, but this was not done in her case.

Vince Lombardi said football is two things: blocking and tackling. The absence of written documentation of poor performance and not following your own procedures, might just be the HR equivalent.


What I find surprising is that the district court thought to grant summary judgment on these facts. The timing of the termination just after the employee had disclosed that she would need medical leave -- that timing alone should've been sufficient circumstantial evidence to raise a triable issue of fact. I find it mind-boggling that district court judges continue to dismiss claims even where there is close proximity in time. Then again, that is exactly what the judge did to me in my last FMLA case.
Good points for employer and employees, alike. But, too many times summary judgment has been granted despite the presence of many of these same facts.
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Thursday, August 06, 2009

Justice Sotomayor Confirmed, To Be Sworn In Saturday

On Saturday, Justice Sonia Sotomayor will become the third female and first Hispanic justice of the United States Supreme Court following today's 61-38 roll call vote in the Senate.

Given that Justice Sotomayor will replace Justice Souter, a consistent member of the current Court's 'liberal' wing, it seems unlikely that her presence will make for a short term dramatic change in the court's direction or voting patterns.

Listening to the speeches for and against Judge Sotomayor, one of the things that struck me is that it is perhaps time for us to put to rest Judge Roberts famous metaphor that he would serve just as an umpire, calling balls and strikes with complete impartiality. Putting it aside is not to impugn Justice Roberts' integrity when he made those comments, but rather to recognize that even umpires set their own strike zone.

Bruce Weber had a similar thought in his article last month in the NYT, Umpires v. Judges.

But if you really want to look at it just from a baseball perspective, check out A Zone of Their Own or this quote from an amateur umpire's guide:
On warm summer night I watched a pitcher working his stuff against a senior umpire I have worked with and respect. It was men's league and particularly humid that night. After watching three of "his best" go for naught he said to the umpire, "Blue, where's your strike zone?" My friend replied, "You've got nine innings to find it!" The umpire's strike zone is the umpire's strike zone. I can assure that pitcher that if my friend was calling "ball" it wasn't even near the plate, for he taught me to "go in expecting a strike every time!"

Floating out over that plate is almost a perfect cube, about 15 inches up in the air, nearly 22 inches wide, 24 inches high and yes, 22 inches deep. "I call a big zone." Why? Because I think strikes. Working with younger ball players you have to think that way. Sure, as the quality of the player increases some think an umpire might boil an inch or two, maybe more, off the top but then he remembers that the quality of the batter has also increased so they feel he adds an inch or two at the sides. Its all relative. Truth is, call the same "strike-able" zone at all levels unless the rules specifically dictate a change. No umpire can give an inch to this level, take off two in the next age group, call at the shoulders in another, and claim a consistent strike zone.

Your league and its traditions will define the strike zone as much as any rule book will. By some books every pitch that crosses the batter shoulders would potentially be a strike.. Does any umpire really call them up that high? Some associations call at the belt buckle as the top of the zone, others call half-way down the calf as the lower part. In some areas "painting the black" is the norm while in others the ball has to have the full plate. Regardless of your definitions, restrictions or instructions THINK STRIKES ON EVERY PITCH! A pitch has to convince you it is a ball before you will not call it a strike. This positive mental approach will increase your consistency and move the game along more than any other mechanic you can learn.

It may be awhile before we do this again, but now would be a good time to realize that while deciding Supreme Court cases may be both more complex and with higher stakes than merely calling balls and strikes, neither is an exact science.

Just as the umpire who calls them as we see them, is viewed as right, and the one who calls them any other way is a bum; the Justice who calls them the way we view the law is interpreting the law (good), while the one who calls it in a way that we wouldn't, is making law (bad).

It's an oversimplification, but no more so than most of the rationales we hear for votes on Supreme Court nominations, including the one just concluded today. Surely, Senators you can do better.

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Wednesday, August 05, 2009

Atlantic City Jackpot - Disability Claim Leads to MDV

Actually that headline is a little too frivolous for what are clearly serious subjects, employers facing disability claims and depression as a disability. When the two came together before an Atlantic City jury the net result was a verdict for Scott Jones, a 55 year old salesman, Depressed worker wins $1.8 million over firing from gas company.

One of the killer lines that is sure to strike terror in any employer's lawyer's heart: "Jones' annual reviews showed he performed satisfactorily." Just yesterday in a training session, I was pointing out that performance appraisals are always key exhibits in an employment trial, and the real question is whose exhibit will they be. Here, it sounds as if they were Plaintiff's Exhibits, which always spells trouble for the defense.

Problematic performance appraisals and the fact that Jones was nearing his 20th anniversary with the company, with nothing more, would be enough to make it clear that this could be a problematic trial if things went south.

Based on the result, they did.


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Sunday, August 02, 2009

Trying to Avoid Layoffs, Employers Turn to Furloughs

Which is a good idea, but one that possesses some legal risks (what doesn't?). One of the primary areas of concern is compliance with wage and hour law. The Department of Labor has put out a timely FAQ, Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues.

If you are considering some form of furlough or related way of reducing costs without eliminating employees, this is a good place to start on the various issues that might arise.

Hat tip to Richard Tuschman at the Florida Employment Law Blog for catching this one.


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