Volume 16 |  February 2017

HR & the Law in the News

Check out this month's issue for news and updates related to (1) What's an ADA Reasonable Accommodation Request? (2) Employment At-Will Exception; (3) FMLA & Confidentiality; and (4) Upcoming Events.

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The Boy Who Cried Wolf?

Have you ever had the employee you wish you didn't have? Something is wrong with everything.  Such was the case in Cady v. Remington Arms Company.  In short, Cady often did not like his workplace or colleagues and the feelings were generally mutual. Cady described his work environment as "hostile," "unhealthy," and that he had a "degrading" relationship with his boss.  On the flip side, his coworkers described him as "Dr. Jekyll & Mr. Hyde...needlessly confrontational...argumentative." One employee testified the stress of dealing with Cady was one of the reasons he quit. About one year after Cady was hired and following yet another outburst they transferred him to another location. That was when he first told his employer about his back problems.  He told the HR manager that he was going to see a surgeon and showed her the MRI results revealing significant lower back problems, including spinal stenosis and nerve compression. He then complained to at least three supervisors and managers that his medication made him sensitive to light, he did not like standing on concrete too long, or getting up and down from a truck and had concerns he might hurt his back. He suggested they "hire a lower paid person to help him do this work, that he was above this pay grade to be doing this work out in the sun." He complained also about unsafe work conditions including that he had been locked out of the building, and that there was too much forklift traffic behind the facility.   He was then released from work the rest of that day and with HR's consent fired the next day for performance issues.  When he sued for wrongful discharge and failure to accommodate under the Americans with Disabilities Act (plus a few more claims) the district court found in favor of the employer finding "Remington had cause to terminate Cady due to his refusal to perform assigned work." But on December 2, 2016 the 6th US Circuit Court of Appeals reversed that decision. Why? Because "a reasonable jury could find that Cady both notified Remington of his disability and requested an accommodation ." Lessons learned? I once heard an EEOC representative say that when an employee uses the words, "I want, I need or I can't" those are requests for reasonable accommodation.  OK, a stretch perhaps and not when the latter two are followed by "more money." But you get the point.  This guy showed HR his MRI, told her he was going to see a surgeon and expressed concern to his supervisor(s) about being able to do the job. The court also pointed out that the same supervisor that fired Cady rated him on his performance review as a valued team member (oops). This might be the best part. Remember they transferred Cady to a new location?  It was because he threatened to resign in that last outburst and they convinced him to stay. Lost opportunity! That was before any mention of any medical condition or back problem. If an employee is toxic, contaminating the workplace and threatens to resign...think about accepting that offer! The boy who cried wolf? This employee complained about so many things how was the employer to know which complaints were valid? The court reminds us, "Although a jury could find that Cady's litany of excuses obfuscated his complaint about his back, there is no rule that an employee's disability notification must stand alone."

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FiveL's Annual Webcast Subscription Still Available!       Now Save $98 FiveL Company's annual webcast subscription for 2017 is still available. Subscribe for the remaining 10 webcast for the price of 8; save $98!!   Join us February 22nd for "Workplace Retaliation: The Employment Boomerang."

Employment At-Will Takes Another Hit

You know the basic tenet of employment at-will: the employer or the employee may terminate the employment relationship at any time, for any reason, with or without notice. The employment relationship continues only at the will of both parties. We also know that "any reason" may not include a reason otherwise made unlawful under federal, state or local law or regulations such as on the basis of protected status like age, race, religion, sex, nationality or disability. Nor may the basis be any legally protected activity like trying to form, join or assist a union.   So when is an employee fired in violation of public policy? Take the case of a groundskeeper who also took on the duties of caring for two horses at her employer's place of employment. She believed the horses were being turned out to pasture in a field that may have had poisonous plants. When her supervisor ignored her concerns she stated that if anything happened to the horses as a result she would "tell everyone" that he ignored her complaints. The next day she was fired for "threatening conduct."  She then sued for wrongful discharge in violation of public policy.  What is public policy anyway? This court describes it as, "...the community common sense and common conscience, applied and extended throughout the state to matters of public morals, public health, public safety and public welfare...it abides only in the customs and conventions of the people - in their clear consciousness and conviction of what is naturally and inherently just and right between and man and a man." Huh?  Put that in your Employee Handbook!   Practically applied. This may be a bit easier to follow. The court looked to the law of the state and found it penalized many forms of animal cruelty. The found the employee's complaint advanced that  state policy even though she did not call any state authority or private agency like the Humane Society at any time during her employment.  Lesson learned? Even if you follow the letter of the law that does not mean your employment actions are lawful.  Listen to your employee.  Consider the timing of your action. Let your business needs drive your employment decisions.  After the fact the employer said they fired this employee because she neglected her groundskeeping duties in lieu of her care for the horses.  Excuse me but that rationale came out after the horse was out of the barn!  Mayhew v. Hermitage Club, LLC

FMLA Foible Employers covered under the federal Family and Medical Leave Act (FMLA) may not interfere with an employee's FMLA rights or retaliate against an employee for exercising those rights. So an employer: (1)  grants to an employee all the leave to which he is entitled; (2) takes no adverse action against the employee for taking the leave; but (3) the employee's supervisor does disclose the employee's medical condition to coworkers (genito-urinary system); and (4) those coworkers subsequently harassed and teased the employee.   Has the employer violated the FMLA? On the court clarified that rights under the FMLA include confidentiality, "The issue in this case is whether confidentiality is a right under the FMLA and whether Defendant interfered with that right." You might guess the court's answer. It held, "confidentiality of medical information is a right provided and protected under the FMLA...the subordinates’ obscene behavior and joking altered his work conditions."  Holtrey v. Collier County Board of County Commissioners    Lessons Learned. I think they are pretty clear.  Train your managers and supervisor about the importance of privacy and confidentiality of certain information. It is not only a legal issue but one of maintaining respect, civility and positive employee relations.  Ensure managers keep their finger on the pulse of the workplace.  If they see, hear or otherwise observe harassing conduct, even if meant as simple teasing correct it promptly or face potential, legal consequences.

This publication does not constitute the rendering of legal advice.  You should consult your company's legal counsel for guidance on any particular matter.

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