It’s been a crazy week. I gave four different seminar presentations over an eight-day span:
Thanks to all who invited me to speak to your organizations. It is always my pleasure.
Here’s the rest of what I read this week:
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Until next week…
What happens when the alleged perpetrator of sexual or other unlawful harassment is also the person to whom the victim lodges a complaint of harassment? If the alleged perpetrator later fires (or causes the firing of) the victim, has the victim engaged in protected conduct (opposition of the harassment) to support a retaliation claim? According to the 6th Circuit, in EEOC v. New Breed Logistics (4/22/15) [pdf], the answer is yes.
The jury concluded that Calhoun, a supervisor, sexually harassed three women (Hines, Pearson, and Pete), retaliated against them after they objected, and further retaliated against a male employee (Partee) “who verbally opposed Calhoun’s sexual harassment and supported the women’s complaints.” The evidence at trial was that Calhoun laughed and responded “that he wasn’t going to get in trouble, that he ran th[e] area, [and that] anybody who went to [HR] on him would be fired.” Calhoun then fired each of the four employees, claiming performance and attendance issues.
As the threshold issue, the 6th Circuit had to determine whether complaints or objections made to the accused harasser constitute protected activity to support a retaliation claim. The 6th Circuit had little difficulty concluding that these four employees had engaged in protected activity:
We conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed…. Here, at the very least, all four complainants requested that Calhoun stop his sexually harassing behavior before their terminations. Consistent with our holding today, these complaints constitute protected activity.
While I agree that this holding makes sense, consider the awful position in which it could place employers who are lax with their termination decisions. An employer is vicariously liable for the actions of a supervisor or manager (e.g., harassment or retaliation). Thus, an employer will be liable for the rogue actions of a harasser trying to protect his or her turf from an objecting employee.
The solution? More diligence and scrutiny of termination decisions by HR departments and senior management. One cannot merely rubber stamp a manager’s or supervisor’s decision to terminate. If that individual harbors a discriminatory animus, we know that the cat’s paw will nab you. Now, we also know, per New Breed Logistics, that retaliation liability has the same potential issues when an alleged harasser is involved.
Bottom line: Do not rubber stamp termination decisions. Fact-check and confirm before allowing the company to pull the trigger.
Chris Lucas suffers from paruresis (aka, shy bladder syndrome). He claimed that he could not urinate in public bathrooms, and often would hold his bladder throughout his entire work day to avoid having to use the restroom at work. He also admitted, however, that if the urge become too overwhelming, his desire not to wet himself would overcome his fear of public urination.
Lucas’s employer, Gregg Appliances, maintained a drug-free workplace policy which required periodic testing of employees. Lucas’s promotion to a general manager position was contingent upon him passing just such a drug test. When Lucas (and his shy bladder) could not complete the drug test, the testing clinic reported to the employer: “PER COLLECTOR: DONOR LEFT COLLECTION SITE BEFORE COMPLETION OF DRUG TEST.” When confronted by management, Lucas never mentioned his difficulty urinating or his paruresis. Indeed, he did not even visit a physician for his condition until the day after Gregg Appliances fired him for failing to take the required drug screen.
In Lucas v. Gregg Appliances (S.D. Ohio 4/15/15), an Ohio federal court concluded that Lucas could not proceed with his ADA claim. The court dismissed Lucas’s claim for two reasons:
The employer had no knowledge of his disability. Lucas never told anyone at the employer before taking his drug test, or after he failed to complete the test. He only relayed his condition to his boss after he was fired. Just because an employer knows that an employee has a health problem (i.e., the inability to pee after drinking several glasses of water over the span of two hours) does not mean that the employer also knows that the employee suffers from an ADA-protected disability. Where the disability is not obvious, the burden is on the employee to make the employer aware.
- Just as the burden is on the employee to advise of the existence of a disability, the burden also squarely rests on the employee to request a reasonable accommodation. Here, Lucas did not request any accommodation (a blood or hair test) until after his termination. If an employee fails to request a reasonable accommodation during his employment, he cannot later complain that the employer failed to provide an accommodation or otherwise participate in the interactive process.
The ADA does not require an employer to guess and play detective. Instead, it anticipates a collaborative conversation between employer and employee about disabilities and accommodations. The party that fails to take part in this conversation will usually be the one that ends up the loser in any ADA lawsuit.
I’ve written a lot in the past few years about the pros and cons of companies using social media to conduct background checks on applicants and employees (e.g., here and here). One issue I’ve never considered, however, is whether the social media site is a “consumer reporting agency” subject to the Fair Credit Reporting Act, or the information compiled from such searches qualifies as a Consumer Report. The issue is significant, because if the social sites are CRAs, or their information are CRs, then employers who use these sites to conduct background searches are subject to the FCRA’s myriad pre- and post-screening notice, consent, and disclosure requirements.
Recently, a California federal court examined this very issue in Sweet v. LinkedIn Corporation [pdf], and concluded that LinkedIn’s Reference Search function does not render it subject to the FCRA.
Unlike other social sites, LinkedIn maintains a specific tool that helps employers’ reference checks—a premium tool called “Reference Search,” which creates “a list of people who have worked at the same company during the same time period as the member you’d like to learn more about.” More simply, Reference Search generates a list of potential employment references.
In Sweet, a group of unsuccessful job applicants argued that LinkedIn failed to comply with the FCRA in how it operates and maintains “Reference Search.” The court disagreed, concluding that LinkedIn’s Reference Search is not a Consumer Report under the FCRA.
LinkedIn’s publications of employment histories of the consumers who are the subjects of the Reference Searches are not consumer reports because the information contained in these histories came solely from LinkedIn’s transactions or experiences with these same consumers. The FCPA excludes from the definition of consumer report any “report containing information solely as to transactions or experiences between the consumer and the person making the report.”
In other words, because LinkedIn creates its databases solely from information submitted by its account holders, it falls outside the FCRA’s coverage.
While employers still have EEO concerns with the use of social networks for background checks, this case should give employers some relief, as it appears that the FCRA is one statute they needn’t worry about when using social media to vet candidates or for other employment purposes.
Several months ago, the EEOC announced its intent to issue regulations interpreting whether employer wellness plans are legal or illegal medical exams under the ADA. Thankfully, last Thursday the EEOC published its proposed regulations, and its good news for employers who use these programs to keep down the cost of their group health insurance.
So, what does this all mean for employers? Let’s take a look, via the helpful Q&A the EEOC published alongside its proposed regs:
Q: What is a Wellness Program?
A: The term “wellness program” refers to programs and activities typically offered through employer-provided health plans as a means to help employees improve health and reduce health care costs. Some wellness programs ask employees to engage in healthier behavior (for example, by becoming more active, not smoking, or eating better), while other programs obtain medical information from employees by asking them to complete a health risk assessment (HRA) or undergo biometric screening for risk factors (such as high blood pressure or cholesterol).
Q: How does the ADA affect workplace wellness programs?
A: The ADA generally restricts employers from obtaining medical information from employees but allows medical examinations of employees and inquiries about their health if they are part of a “voluntary” employee health program…. However, … the Affordable Care Act allows wellness programs to offer incentives—in the form of rewards to participating employees who achieve certain health outcomes or penalties if participating employees fail to achieve health outcomes.
The proposed rule clarifies that the ADA allows employers to offer incentives up to 30 percent of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes.
Q: When is a wellness program considered “an employee health program” within the meaning of the ADA?
A: A wellness program is considered an employee health program when it is reasonably designed to promote health or prevent disease. The program must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. For example:
- Asking employees to complete a HRA or have a biometric screening for the purpose of alerting them to health risks (such as having high cholesterol or elevated blood pressure) is reasonably designed to promote health or prevent disease.
- Collecting and using aggregate information from employee HRAs to design and offer programs aimed at specific conditions prevalent in the workplace (such as diabetes or hypertension) also would meet this standard.
However, asking employees to provide medical information on a HRA without providing any feedback about risk factors or without using aggregate information to design programs or treat any specific conditions would not be reasonably designed to promote health.
Q: When is a health program considered “voluntary”?
A: The NPRM lists several requirements that must be met in order for participation in employee health programs that include disability-related inquiries or medical examinations to be voluntary. Specifically, an employer:
- may not require employees to participate;
- may not deny access to health coverage or generally limit coverage under its health plans for non-participation; and
- may not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees (such as by threatening to discipline an employee who does not participate or who fails to achieve certain health outcomes).
Additionally, if a health program is considered a wellness program that is part of a group health plan, an employer must provide a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.
Here’s the $64,000 question:
Q: How much of an incentive may employers offer to encourage employees to participate in a wellness program or achieve certain health outcomes?
A: 30 percent of the total cost of employee-only coverage.
I am thrilled that the EEOC did not go nuclear and blow up wellness programs as discriminatory under the ADA. Given the surging cost of health insurance and the massive burden those costs place on employers and employees, it is relief that the EEOC is leaving these beneficial programs intact. Moreover, the EEOC’s 30% hard cap is certainly more palatable than a fuzzy “reasonableness” standard that begs for litigation and uncertainty. While both employers and employees can quibble over whether 30% is too low, too high, or just right, I’d rather have this Goldilocks debate over a number we can see than a different debate over a fuzzy standard that we cannot.
A full copy of the proposed regulations is available here [pdf].