I believe in the dignity of labor, whether with head or hand; that the world owes no man a living but that it owes every man an opportunity to make a living.

John D. Rockefeller

Adding to Mr. Rockefeller’s belief, the National Labor Relations Board (NLRB) wants employers to remind their employees that while making a living they also have rights under the National Labor Relations Act (NLRA).

Specifically, the NLRB recently announced a new rule that requires employers to post a workplace notice advising employees of their rights under the NLRA, which include rights to unionize, collectively bargain, and strike. The new rule applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act and takes effect on November 14, 2011.Here is a link to the NLRB’s Q&A regarding the new posting rule.

Soapbox.jpgRhetoric & Reality – A Few Observations 

Not surprisingly, the NLRB’s posting rule has generated heated rhetoric from the business community (See National Labor Relations Board is out of Control and NLRB Rule Requiring Posters In Workplace Infuriates Business Groups. It also comes at a time when labor organizations are increasingly critical of President Obama (See Labor’s Criticism Of Obama Grows Louder).

Setting aside, however, the competing views on both sides of the union divide, there are two important facts to put this rule in perspective:

First, the rule is enacted at a time when the percentage of private-sector workers belonging to a union is down to 6.9% from the peak of 35% in May 1954. Without adapting to a workplace that has significantly changed since 1954 or otherwise offering employees a compelling reason to organize, it is nothing short of delusional to think that the NLRB’s posting requirement will reverse this trend.

Second, James Carville (he is credited with being a cornerstone of President Bill Clinton’s successful Presidential Campaign) famously noted that “If You Say Three Things, You Don’t Say Anything.”

With this in mind, the posting required by the NLRB – an 11 by 17 inch poster – advising employees of their rights under the NLRA will likely blend into the sea of verbiage of other posting requirements already found in most workplaces.

For example, the U.S. Department of Labor identifies 11 different employment related laws that must be posted in various workplaces. See U.S. Department of Labor Workplace Poster Requirements. Additionally, employers are required to post notices from the EEOC describing federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. This is in addition to state required posters, such as MIOSHA.

Conclusion

Employers shouldn’t like the NLRB’s new posting rule. But I would be much more concerned about the impact of the NLRB’s proposed revisions to the union election process than the posting requirement. This is because the revision to the election process essentially threatens to impair an employers’ ability to mount a successful campaign to educate workers about the realities of union representation or counter inaccurate or misleading union claims. But that is just me and I’m getting off my soapbox for a long Labor Day Weekend.

Porn Keyboard.jpgA recent denial of unemployment benefits in Berglund v Industrial Technology Institute (7/21/2011) offers important insight for both employers and employees when it comes to accessing Internet pornography in the workplace and technology use policies.   

Overview of Michigan Unemployment Benefits

Under Michigan law, an employee is disqualified from receiving unemployment benefits if he or she is discharged or suspended for “misconduct connected with … work.” MCL 421.29(1)(b). Employers bear the burden of proving misconduct. And normally this is a high burden to meet because “misconduct” must evince a “willful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior” that an employer has the right to expect of its employee. Carter v MESC, 364 Mich 538, 541, 111 NW2d 817 (1961). 

Willfulness can be shown by an employee’s conscious violation of an important, well-known employer policy or rule, particularly if the employee has been warned previously about such a violation. 

The Initial Denial of Unemployment Benefits

In the Berglund case, the hearing referee made an initial determination that the discharged employee, Mr. Berglund, was guilty of misconduct and, therefore, denied him unemployment benefits. The Michigan Employment Security Commission Board of Review upheld the denial of unemployment benefits. 

The misconduct consisted of evidence presented by the employer that:

  • Mr. Berglund visited a number of inappropriate web sites, including “teenagecheerleaders.com,” “sextelevision.net,” and other sites involving swimsuit models and Victoria’s Secret;
  • These sites contained images of scantily dressed females, nudity, and other images considered pornographic;
  • Mr. Bergland admitted to receiving and keeping emails that were pornographic and that he “might have” instructed his computer to access a site like sextv.com; and 
  • In an eight hour day, records reflected approximately 3½ to 4 hours was spent by Mr. Berglund visiting these types of sites.

The Denial of Unemployment Benefits is Reversed

The Employment Security Commission Board of Review’s decision, however, was reversed by the Wayne County Circuit Court. In reversing this decision, the Court noted that the employer did not present any evidence that Mr. Berglund violated an employer policy or technology use policy in accessing these sites. Further, there was no evidence that the employer directed Mr. Berglund not to view such sites.

The Circuit Court also noted that there was no evidence that Mr. Berglund’s accessing any sites negatively affected his work performance. Additionally, the Court noted that personal use of work computers was allowed by the employer. 

The Denial of Unemployment Benefits is Reinstated

When the issue of Mr. Berglund’s unemployment benefits reached the Michigan Court of Appeals, it reinstated the Michigan Employment Security Commission Board of Review’s decision to deny unemployment benefits. Interestingly, the Court touched on the idea that accessing websites of the type at issue can lead to spam, pop ups, and cookies, which can impair a network and, therefore, harm the interest of the employer: 

An employer has an interest in maximizing the capability of its network. An employee who deliberately accesses websites that hinders the work network’s capability harms the interests of the employer.

Under the Court’s reasoning, this “harm” also supported a finding of misconduct. 

The Take Away

Certainly no one would seriously dispute that accessing pornographic websites or other sites of a sexual nature would fall into the category of a “good career move.” But this case illustrates the considerable range of opinions that can be reached as to whether such conduct should be the basis for denying an employee unemployment benefits.    

Employees

For individual employees, it is critical to follow an employer’s computer use policies. It is also equally important that in the absence of such policies or when it comes to “grey areas,” common-sense should be exercised in using workplace resources to access the Internet. And if you are ever uncertain – a good rule of thumb is accessing pornography sites at work is never a good idea. Further, it should be assumed that your workplace Internet use is monitored.     

Employers

First, it would have been much harder for the circuit court to reverse the denial of unemployment benefits if the employer had in place a technology policy that expressly prohibited accessing or displaying any kind of sexually explicit image or document using company resources. This is because there would have been no need to make judgment calls made by the circuit court to reverse the denial of benefits. 

Second, it is not unreasonable to expect (and in my experience it should be anticipated) that employees use company resources to access Internet pornography or similarly inappropriate sites while at work. For this reason, it is critical for companies to have a policy that expressly puts employees on notice that accessing or displaying any kind of sexually explicit image or document on any company system is not permitted, a violation is subject to discipline, up to and including discharge, and that Internet usage may be monitored to, in part, enforce the policy. 

Third, the argument that cookies, spam, and pop-up ads provided sufficient harm to the employer to justify a denial of unemployment benefits was unconvincing. Such Internet flotsam is present to some degree on all commercial websites and this particular employer did not place any restrictions on accessing any sites for personal use.

Also, any network traffic is going to impact an employer’s network to some degree. But to say a cookie, which is simply a text file, will take up sufficient bandwidth to hinder network traffic is a stretch (any network administrators please weigh in on this issue). And this stretch would fall flat if it had been shown that other employees were allowed to access video content or stream Internet music over the company network because both actually devour significant amounts of bandwidth.

A stronger argument would have been to take the position that accessing, downloading, or saving images using company resources that contain sexually explicit material violated the company’s sexual harassment policy (assuming the employer had such a policy). It is far more convincing that such conduct approaches the “willful or wanton” disregard of an employer’s interest – preventing sexual harassment or a hostile work environment – to warrant a finding of misconduct warranting a denial of unemployment benefits than the network traffic argument. 

Stop Sexual Harassment.jpgWhile the criminal charges against Dominique Strauss-Kahn have now been dismissed, his conduct and his employer’s response provides a textbook full of examples of how not to respond to sexual harassment in the workplace.

Sexual Harassment Overview

Under Title VII of the Civil Rights Act, there are two basic forms of actionable sexual harassment: 

Quid pro quo – conditioning employment or some aspect of employment on a favorable response to sexual advances in the workplace); and 
Hostile environment harassment – sexual comments and conduct so pervasive that the workplace becomes intimidating, hostile, or offensive). Both forms of sexual harassment require unwelcome conduct of a sexual nature.
An employer’s liability for the sexual harassment of a supervisor turns in part on whether the harassment claim is a quid pro quo or hostile work environment claim. 
Under U.S. Supreme Court law (Faragher v City of Boca Raton, 524 US 775 (1998) and Burlington Indus v Ellerth, 524 US 742 (1998)) where an employee proves actionable sexual harassment involving a tangible employment action by a supervisor, whether the harassment was quid pro quo or hostile environment, the employer is strictly liable even if it knew nothing about the harassment. 
In the absence of a tangible employment action, an employer will still be liable for a hostile work environment created by its supervisors unless it successfully establishes as an affirmative defense that:
 
The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 
The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm. . . .”
Thus, an employer must initially establish that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior. 
Today, most employers have established and distributed policies prohibiting sexual harassment and how such prohibitions will be enforced. Such steps will often constitute an adequate general preventive measure. 
The second part of the affirmative defense requires an employer to show “that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” 
Brantley v. Cinergy Corp., 2007 U.S. Dist. LEXIS 62904 (S.D. Ohio Aug. 27, 2007) (Fact issues as to whether supervisors failed to adequately address certain incidents brought to their attention and that employees were consequently discouraged from reporting other incidents).
However, the “mere existence of a grievance procedure and a policy against discrimination, coupled with a respondent’s failure to invoke that procedure,”  [*68] will not necessarily insulate an employer from Title VII liability, especially where the facts suggest the procedure and policy were not reasonably “calculated to encourage victims of harassment to come forward.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 72-73, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986).
Of course, an employee may have a reasonable explanation for why he or she did not complain about the alleged harassment. To avoid summary disposition, however, an employee will have to articulate specific facts that support the reason for not complaining. n25 Thus far, simply alleging, in conclusory fashion, that he or she did not complain because of fear of retaliation has been ineffective in avoiding summary judgment, especially when the policy stated that “reprisals against the reporting employee would not be tolerated.” n26
At a minimum, an employer must establish and distribute an anti-harassment policy, with alternate avenues of relief, to its employees. The employer also should have employees sign a receipt for the policy to prevent an employee from subsequently claiming that he or she never received the policy. Simply distributing the policy is  [*436]  probably not enough and the employer should provide supervisors and managers with sexual harassment training or, at the very least, train them regarding the employer’s policy.
If there is a complaint, an employer should investigate and take prompt remedial action to end the alleged harassment. At best, such action may be a defense to any claim and, at worst, it may limit the employer’s liability.
When attorneys assess and investigate a sexual harassment claim, the following should be the focus: Did the employer have a sexual harassment policy? If so, did the employer distribute and/or post it? Can it be proved that the complainant knew of the policy? Did the policy provide that complaints could be brought to someone other than the complainant’s supervisor? Did the employee complain about the alleged harassment? If not, or if a significant delay occurred between the alleged harassment and the employee’s complaint, did the employee have a reasonable explanation for inaction? Did the employer make a full investigation and then take prompt remedial measures? Had other employees complained about sexual harassment? If so, how did management handle these complaints?
  • Quid pro quo harassment involves conditioning employment or some aspect of employment on a favorable response to sexual advances made in the workplace; and
  • Hostile environment harassment consist of sexual comments and conduct so pervasive that the workplace becomes intimidating, hostile, or offensive. 

Both forms of sexual harassment require unwelcome conduct of a sexual nature. An employer’s liability for the sexual harassment of a supervisor turns in part on whether the harassment claim is a quid pro quo or hostile work environment claim. 

This is because under U.S. Supreme Court law (Faragher v City of Boca Raton, 524 US 775 (1998) and Burlington Indus v Ellerth, 524 US 742 (1998)) where an employee proves actionable sexual harassment involving a tangible employment action by a supervisor, whether the harassment was quid pro quo or hostile environment, the employer is strictly liable even if it knew nothing about the harassment.

In the absence of a tangible employment action, an employer will still be liable for a hostile work environment created by its supervisors unless it successfully establishes as an affirmative defense that:

  • The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
  • The plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm. . . .”

This framework, however, would not likely be available to the IMF based on Mr. Strauss-Kahn’s conduct and the IMF’s response. 

Why Employers Cannot Afford to Look the Other Way

Most employers have written policies prohibiting sexual harassment, clear explanations for how such prohibitions will be enforced, and several ways to report concerns about sexual harassment. Such steps will often constitute an adequate general preventive measure by employers that will meet the first prong of the defense. 

In contrast, according to Bloomberg Businessweek’s profile of Mr. Strauss-Kahn, the IMF appeared to simply look the other way when it came to Mr. Strauss-Kahn’s improper conduct:     

As head of the IMF he was able to competently – some say brilliantly – steer the fund through a global economic crisis, all the while conducting himself with women in a manner that even his colleagues found unseemly, with little consequence. 

Even more troubling is that a member of the IMF’s HR department actually warned other managers “not to leave Strauss-Kahn alone in a room with any women.”

So even if it is assumed that the affirmative defense was viable, i.e., Mr. Strauss-Kahn took no tangible employment action against a subordinate, the IMF would still have difficulties in showing “that prospective plaintiff employees unreasonably failed to take advantage of the IMF’s preventive or corrective opportunities it provided to avoid harm.

This is because in light of the IMF’s apparent indifference, an employee could easily argue that IMF employees were essentially discouraged from reporting incidents of sexual harassment involving Mr. Strauss-Kahn. In fact, one such employee who claimed to have acquiesced to Mr. Strauss-Kahn’s pursuits described her situation as follows:  

I believe that Mr. Strauss-Kahn abused his position in the manner in which he got to me … I felt that I was ‘damned if I did and damned if I didn’t … But it is, in my view, incontestable that Mr. Strauss-Kahn made use of his position to obtain access to me.”

The Take Away

There are a number of important components to an employer’s anti-harassment policy that should be developed with experienced legal counsel. A cornerstone of that policy, however, must include an employer’s willingness to investigate and take prompt remedial action to end the alleged harassment – no matter the brilliance or status of the alleged harasser.

Man in Drag.jpgUnder existing law, employers may avoid liability for hostile environment sexual harassment by supervisors under certain circumstances. But a “trailblazing” company may be challenging the status quo with a “too ugly to sexually harass” defense.

Current Hostile Sexual Harassment Defense Law

To avoid liability for sexual harassment for hostile environment harassment by supervisors under Title VII, the U.S. Supreme Court requires the employer to show (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the plaintiff unreasonably failed to take advantage of corrective or preventive opportunities offered by the employer or to otherwise avoid harm. Burlington Indus v Ellerth, 524 US at 765; Faragher v City of Boca Raton, 524 US at 807.

To prove the first element, proof of the existence of an effective anti-harassment policy and grievance mechanism will ordinarily suffice under the Supreme Court’s Burlington decision. To prove the second element, proof that the plaintiff unreasonably failed to use the procedure will ordinarily suffice. Ellerth, 524 US at 765; Faragher, 524 US at 807–808.

Thus, Title VII requires reasonable prevention and reasonable remedial actions after the harassment has occurred.

Or ….. There’s the “too ugly to harass” defense?

Employers may have another defense to add to their sexual harassment defense tool box if a “trailblazing” New York City company appears to be pushing for the “too ugly to harass” defense.

Specifically, the Current Employment Law Blog by Timothy Eavenson reported that a former real estate company employee in New York City claimed she was sexually harassed by at least 7 different male employees.

In response, the owner of the company defended the company by pointing out that “no one would want to touch the former employee, because she’s too ugly.” (Quoting the Current Employment Law Blog). 

The Take-Away

Employers should not anticipate the U.S. Supreme Court (or any court for that matter) expanding current sexual harassment law to include the “too ugly to harass” defense. 

Instead employers should focus on having clear policy statements prohibiting discrimination in employment, defining prohibited discrimination, and providing multiple avenues for complaints of perceived discrimination. Such steps can go a long way toward helping an employer avoid liability for employment discrimination.   

Cost, Risk, Effort.jpgThe Wall Street Journal (by Joe Light) recently reported that departing employees are more disgruntled than ever. The article notes that based on exit interviews of more than 4,300 employees from 80 companies:

More than three-quarters of departing employees say they wouldn’t recommend their employer to others, the worst percentage in at least five years …

The WSJ article goes onto discuss the negative impact departing employees may have on a company’s image.

But disgruntled employees may also directly impact the company’s bottom line. Consider the following examples:

Developing a Comprehensive Procedure for Departing Employees 

Thankfully such unscrupulous acts are the exception. But these exceptions also demonstrate the highly consequential adverse effect unscrupulous departing employees can have on a company. With proper planning, however, these risks can be eliminated or, at least, managed. This risk management program should be developed in collaboration with an experienced lawyer, but among the topics that should be discussed with legal counsel are the following:

  • Pre-Exit Interview Review: Once an employer learns an employee will be leaving, it should review that employee’s file to confirm what, if any, agreements the employee may have signed. Typical examples may include patent and invention agreements, agreements pertaining to confidential information and trade secrets, and the company should be aware of every provision in every agreement or policy that may be helpful to the company. This review provides an opportunity for the employer to understand every provision in every agreement signed by the departing employee. Each such agreement should be discussed with the departing employee so the individual understands his or her obligations.  
  • The Exit Interview: An employer should conduct an exit interview with the departing employee before their last day of work. This interview should be conducted (ideally) by two interviewers. The interview should focus on (i) reviewing all work the individual was working on, as well as all critical customer contacts; (ii) apprising the individual of the need for confidentiality regarding all such work and customers; (iii) reminding the individual of all agreements he or she signed and highlight any post-work restrictions; (iv) if there were no agreements, the employer should emphasize that the law provides additional employer protections over proprietary and trade secret information; (v) the employer should also ask the person to explain what steps he or she took to ensure that no trade secret information or proprietary information will be taken or otherwise used in the individuals’ new position.  
  • Proper Investigation: If there is reason to believe the departing employee has or will take confidential information or trade secrets, legal counsel should be contacted immediately. An experienced lawyer will be able to collaborate with the employer for implementing proper steps and procedures for documenting the theft and positioning the matter to obtain all available remedies.

For additional information on minimizing risks at the intersection of technology and departing employees, see the employer’s technology checklist for departing employees.

YellowQuestionMark.jpgThis blog previously noted that the Sixth Circuit (the federal circuit that includes Michigan, Ohio, Kentucky, and Tennessee) would likely change its standard for analyzing claims under the Americans with Disabilities Act (ADA) from a stricter standard to a less demanding standard that favors employees. Americans with Disabilities Act: The Times They are (likely) a Changin.’ 

The first step towards making that change was recently taken by the Sixth Circuit when it granted a certain procedural hearing in June (PDF).

Specifically, in Lewis v Humboldt Acquisition Corp., Susan Lewis lost her ADA claim at the trial level. On appeal, she argued that the trial court should have instructed the jury that her disability need only be a “motivating factor” for her termination rather than the “sole factor” for the adverse employment action. But this “motivating factor” standard is not the law in the Sixth Circuit.

Instead, the current law in the Sixth Circuit requires that a plaintiff must prove that the plaintiff’s disability was the “sole reason” for the adverse employment action (see the 1996 court opinion Monette v. Elec. Data Sys. Corp). Based on Sixth Circuit appellate procedure, this prior opinion must be followed unless reversed. That reversal, however, could only occur through a procedural hearing referred to as an “en banc” hearing.

While such a hearing is the exception, and a rare one at that, the en banc rehearing was granted, which means all the Sixth Circuit appellate judges will hear the case and decide if its prior precedent (Monette) should be reversed. It is anticipated that this will happen.

If that happens, the Sixth Circuit’s current “sole reason” standard will be overruled and likely be replaced with the “motivating factor” standard. Under the “motivating factor” standard a plaintiff is only required to prove his or her disability was a motivating factor of the adverse employment action rather than the “sole reason” in order to make successfully state an ADA claim. 

The Take Away

If (when) the Sixth Circuit reverses its “sole reason” standard in favor of the “motivating factor” standard for making an ADA claim, employers will certainly face a more employee-friendly litigation landscape in the Sixth Circuit. This is especially true because employers will have less opportunity to rely on disposing of a case through a summary judgment motion under the more lenient standard. But it will also mean that the Sixth Circuit would be in the majority (at least 8 other federal circuits follow the “motivating factor” standard) rather than in the minority.  

It is also worth noting that employers in Michigan have essentially operated under the less demanding “motivating factor” standard when it comes to Michigan’s state law equivalent to the ADA. That state law being the Persons with Disabilities Civil Rights Act (PDCRA). Under the PDCRA, Michigan courts have generally required an individual to show that unlawful discrimination was at least a “motivating factor” in the employer’s actions. Hazle v. Ford Motor Co., 464 Mich. 456, 462 (2001).

We will continue to monitor this case, but please subscribe to this Blog for updates on the anticipated changes discussed above. 

Ascent.jpgOn May 24, 2011, the Americans with Disabilities Act Amendments went into effect, which were the result of the 2008 ADA Amendments Act signed into law by President Bush. 

Without question, the ADA Amendments make it easier for individuals to establish coverage. In fact, Congress overturned several U.S. Supreme Court decisions that had narrowly interpreted the definition of “disability,” resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy.

But this broader coverage should not be viewed as a negative. In this regard, we had the opportunity to interview Adam Kaplan of Big Tent Jobs, LLC, to discuss this topic. Big Tent Jobs is a Michigan-based company that focuses on placing individuals with disabilities into positions with leading employers. Mr. Kaplan’s insight in working with such individuals is considerable. It is, however, definitely exceeded by his passion for helping these individuals find opportunities to positively contribute in the workplace.

  • Your company is Big Tent Jobs. Explain what your company does and why were you motivated to develop this business.

Big Tent Jobs, LLC places ready to work individuals with disabilities at leading companies. Our firm matches the best “specially-abled” candidates with hiring managers who are committed to meeting and exceeding their business and diversity objectives. In doing so, our company aims to right the injustice that millions of talented individuals with disabilities are unemployed or underemployed. We work with candidates to find skilled, well-paying jobs that allow them to showcase their talents and strengths.

It is important to remember that in the 20+ years since the ADA was signed, the rate of individuals with disabilities in the workforce has not markedly improved. In fact, studies have shown that during parts of the current recession, working-age individuals with disabilities have lost jobs at rates up to three times as high as non-disabled individuals. Big Tent is focused on reversing this trend for the benefit of individuals and prospective employers. 

Our candidates include hearing and visually impaired individuals, as well as individuals who use wheelchairs and those who have emotional disabilities. They include engineers, lawyers, accountants and IT personnel. What stands out most about the people we work with is their dedication to use their expertise to be productive citizens and desire to secure the job that they need and deserve.

  • An important component under the Americans with Disability Act is the interactive process that both the employee and employer should engage in to determine an appropriate, reasonable accommodation. Do you have any general recommendations for employers and individuals who may require a reasonable accommodation when it comes to addressing such accommodations?

Yes – disclose, disclose, disclose! Disclosure by individuals is the best way to go and employers have a responsibility to create the work environment that makes disclosure a good option for someone with a hidden disability.

It is not as hard as it might seem to accommodate a worker with a special need. Since current or new employees with disabilities may have lived with their disabilities for a long time, or all their lives, they usually know what accommodations they need and may already have what is needed, such as a modified keyboard or adapted handheld device so that an employer might not even need to spend any money.

In the instances where an employer must invest in an accommodation, many accommodations are paid by governmental agencies, although budgetary constraints will make this option less and less of a possibility.

Finally, there are tax credits and other incentives for making accommodations that are out there and discoverable with a minimum amount of research.

  • What do you see as a challenging issue for employees and employers when it comes to reasonable accommodations in the workplace?

The biggest challenge is one of perception – an emotional one – that someone with a disability is getting “special treatment” by the employer. The key is having open conversations about the accommodations and how they are designed to put the person with a disability on a level playing field with that person’s colleagues to enable the person to do the job. And if extra help is needed to determine what is an appropriate accommodation there are free resources like the Job Accommodation Network in addition to attorneys who focus on ADA issues. 

  • What point would you like employers to take away when it comes to hiring employees who may need a workplace accommodation due to a disability?

Accommodating people with disabilities is EASY if both parties use honest, clear communication and exercise common sense. Fifteen to twenty percent of the working-age population today has a disability and over time 1 in 4 working people will acquire one. We owe it to our friends, colleagues and ourselves to do everything we can to fully integrate these able workers into our companies.

  • Any last words?

Hire talented candidates with disabilities now! For an example of the candidates we have to offer, watch the upcoming show “A Wider World” on WTVS Detroit on August 16, 2011 at 5.30pm where three such candidates will be profiled. 

Additional Considerations

Mr. Kaplan’s observations about the importance of communication between the employer and employee cannot be emphasized enough. This is especially true for employers because under the ADA unlawful discrimination specifically includes “not making reasonable accommodations [for a] qualified individual with a disability…” 42 USC 12112(b)(5)(A). For information about responding to or making a request for a reasonable accommodation see our prior post: A Road Map for Responding to Requests for Accommodations under the Americans with Disability Act.

Line of Questions.jpgA recent employment discrimination claim highlights that employers and their lawyers still struggle with e-discovery preservation obligations. 

In Haraburda v. Arcelor Mittal USA, Inc.(N.D. Ind. 6/28/2011) (PDF) the defendant former employer was ordered by the Court to implement a broad litigation hold to preserve information that may be discoverable (i.e., information that relates or may lead to information that relates to the litigation) in the plaintiff’s lawsuit. 

The Defendant Employer’s Failure to Implement any Preservation Hold

Plaintiff learned that after she filed her employment discrimination complaint that certain emails were deleted during the EEOC investigation. The employer’s HR manager responded to these deleted emails taking the position that:

… files stored on company computers are company property and can be assessed and/or deleted as the company views appropriate.

The defendant employer further rejected plaintiff’s request for assurances that going forward discoverable information would be preserved and refusing to “implement a litigation hold or other process to preserve evidence” until after a required litigation conference (the Rule 26(f) conference, which may not be scheduled until months after a complaint is filed). Plaintiff then moved for an Order to Preserve Evidence. 

In contrast to the employer’s position, the Court recited what is (or should be) essentially litigation preservation 101: when “[a party] knows, or should have known, that litigation was imminent” then preservation obligations are triggered and “the party should implement a plan to find and preserve relevant evidence.” Accordingly, the Court granted plaintiff’s motion and ordered defendant to “place a litigation hold on any and all documents and information that may reasonably be related to the pending litigation.”

The Take Away

This case actually mirrors another matter discussed on this blog where a Metro Detroit law firm was sued for employment discrimination and it was also alleged to have failed to implement a litigation hold thereby losing discoverable information. Both cases are prime examples of bad litigation strategy. They further illustrate that without appropriate e-discovery planning you are simply inviting plaintiffs’ attorneys and judges to step in and implement the steps “they” think the employer should have taken. 

The bottom line is that having the best litigation strategy to defend against an employment discrimination claim means very little if it is unconnected to meeting basic e-discovery preservation obligations. Accordingly, a good employment litigation strategy must coordinate actions and resources between the substantive legal issues and e-discovery preservation so as to accomplish a comprehensive plan that puts an employer in a strong position to defend against the claims and, if necessary, argue against over broad and often expensive “hold any and all” type plans that are judicially imposed or requested by opposing counsel. Follow this link for an overview of e-discovery issues that should be addressed. 

Muslim Prayers.jpgThis week marked the beginning of Ramadan, which is the Islamic month of fasting. Participating Muslims generally refrain from eating and drinking during daylight hours. Ramadan is intended to teach Muslims about patience, spirituality, humility and submissiveness to God.

It is also a good reminder for the need to understand restrictions against religious discrimination in the workplace – not only Islamic religion but all religions. 

This is because Michigan employers are generally prohibited from discriminating in employment decisions and conditions on the basis of religion under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) and Title VII under federal law. 42 U.S.C. §§ 2000e et seq.; MCL 37.2202; See also 29 CFR 1605.1 et seq. for additional EEOC guidelines concerning religious discrimination.

Three Forms of Religious Discrimination 

Claims of religious discrimination under Title VII are often framed under three general theories:

  • Disparate treatment: An employee may may assert a disparate treatment theory where an employer treats an employee less favorably than other similarly situated employees because of the employee’s religious beliefs or practices. For example, in Campbell v. Avis Rent a Car Sys. (pdf) (E.D. Mich. 2006) a Muslim plaintiff contended that she was terminated because of her Muslim religion and not for legitimate, non-discriminatory reasons because no non-Muslim employee had been terminated under similar circumstances; 
  • Hostile Work Environment: Under this theory, an employee may claim that the employer subjected the employee to a hostile work environment that may take the form of pervasive religious slurs or insults. An example of this type of discrimination occurred in EEOC v. Sunbelt Rentals, Inc., (4th Cir. 2008) where the plaintiff suffered severe and pervasive religious discrimination when several co-workers, including one supervisor, repeatedly called him “Taliban” and “towel head,” questioned his allegiance to the United States, mocked his kufi and beard and observance of prayers, and made several anti-Muslim comments in the plaintiff’s presence; and  
  • Failure to Accommodate: An employee may claim that an employment requirement, although evenhandedly implemented by the employer, conflicts with the person’s religious practices. Enforcement of such a requirement against the employee constitutes a violation of Title VII unless the employer demonstrates that it is unable to accommodate the employee’s religious practices without undue hardship. This type of claim was seen in EEOC v. Abercrombie & Fitch Stores, Inc. (2011) where the employer was found to have discriminated against a job applicant for its retail store because she wore a Muslim head scarf. The employer unsuccessfully argued that the scarf violated its employee “look policy” and, therefore, was an undue hardship. 

The Take Away

While the preceding examples of religious discrimination involve Muslim religious practices and beliefs, it is important to realize that religious discrimination may involve any belief that constitute a “religion.” For example, see the Ohio Employer’s Law Blog’s discussion on a claim involving a Taco Bell employee and practicing Nazarite’s refusal to cut his hair in accordance with his Biblical views. Further, Title VII broadly defines the term “religion” as “all aspects of religious observance and practice, as well as belief.” But defining what is a “religion” or what religious accommodation may or may not be appropriate is best addressed in collaboration with a competent employment attorney.

For further information on Muslim religious practices, the Council on American-Islamic Relations provides employers with this overview of Muslim Religious practices (PDF).   

Fingerprint shackle.jpgA recent article in the Wall Street Journal, As Criminal Laws Proliferate, More Ensnared (Gary Fields and John Emshwiller), details the increasing number of federal criminal statutes and federal prosecutions – a threefold increase over the last 30 years. The article attributes – in part – this upward spiral to the criminalization of issues generally considered more appropriate for civil lawsuits. 

The Computer Fraud & Abuse Act

The Computer Fraud and Abuse Act (“CFAA”), discussed in the preceding article, is a prime example of a criminal statute increasingly applied to civil matters and especially to matters arising in the context of the employment relationship. 

In fact, a federal judge in dismissing CFAA claims against a former employee for excessive internet/facebook use, echoed concerns similar to those raised in the WSJ’s article:  

The CFAA is a criminal statute originally designed to target hackers who access computers to steal information or to disrupt or destroy computer functionality, as well as criminals who possess the capacity to “access and control high technology processes vital to our everyday lives ….

Despite the original “design” of the CFAA as a primarily criminal statute, now anyone “who suffers damage or loss … may maintain a civil action … to obtain compensatory damages and injunctive relief or other equitable relief.” 18 U.S.C. § 1030(g). The CFAA lacks a “specific intent” requirement, which simply means that a violation does not require a person to intend to wrongfully access and cause damage. Instead, criminal and civil liability are essentially based upon accessing or obtaining information from a protected computer without authorization.

But “access without authorization” has become such an elastic concept that the statute has been applied to a number of common employment scenarios:

The Take-away

Reasonable people can certainly debate the appropriateness of applying a federal criminal computer hacking statute to employment related disputes. But the bottom line is that a computer engineer who decides to copy some interesting source code “just in case” he needs it at his next job, or the budding entrepreneur who downloads a customer database in preparation to start a competing business, or any number of situations where an employee accesses an employer’s computer “without authorization” may form the foundation for imposing liability under the CFAA.