A 10 Million Dollar Lesson about Perception

Occasionally, when an employee returns to work with a full release, an employer will have doubts about the employee’s ability to perform their job and question whether the employee is really able to return to work. The employer might be worried about additional risk if the employee is injured again or injures someone else.  Employers must remember, however, that the ADA protects employees from discrimination based on perceived impairments (as well as actual impairments).  Thus, refusing to return a fully-released employee to work based on a perception that the employee cannot do the job can lead to a claim for disability discrimination.

In a recent case out of Alabama, a jury returned a $10.5 million dollar verdict against an employer because the employer refused to allow an employee to return to work after an accident, even though the employee’s doctor provided a full release. The employer required the employee to submit to a medical evaluation (which cleared him for work) and required the employee take a number of field tests (which he passed), but still refused to allow the employee to return to his job.  The employer also sent conflicting letters about why the employee could not return to his position and rejected him from other alternative positions.

The jury found that the employer regarded the employee as disabled and refused to reinstate him because the employer regarded him as disabled. The verdict will be reduced post-trial.  Nevertheless, the case is a helpful reminder to employers that the law protects employees from discrimination based on employer perceptions of capability and that there can be significant risk under the ADA where an employer second-guesses a full release under the ADA.

The case is: Whitted v. Norfolk Southern Railway Company, Inc. N.D. Alabama, Case No. 2:13-cv-01550 (currently available by subscription).



EEOC Proposes Updated Guidance on Retaliation

The EEOC has not issued guidance on retaliation claims since 1998, when it issued a Compliance Manual on Retaliation. Earlier this month, based in large part on the fact that retaliation is the most frequently alleged basis of discrimination in the public and private sectors, the EEOC announced that it was seeking public comment in connection with the issuance of updated guidance on retaliation.  The draft includes detailed information on the elements of a claim for retaliation, citations to recent cases, and best practices for employers. The best practices include: written policies, training, providing “anti-retaliation advice and individualized support for employees, managers and supervisors,” proactive follow-up, and review of “consequential employment actions to ensure EEO compliance.”

The EEOC press release is here: http://www.eeoc.gov/eeoc/newsroom/release/1-21-16a.cfm

The draft guidance is here: http://www.regulations.gov/#!docketDetail;D=EEOC-2016-0001





New DOL Rules on Overtime

We previously posted about the Department Labor’s proposed rule changing the salary requirements for exempt administrative and executive employees.  Initially, there were suggestions that the new rule would go into effect in January 2016 (with an increase in the minimum weekly salary from $455 per week to $970 per week).  It now appears that the DOL will not issue a final rule until July 2016.  This gives employers more time to consider the compensation of currently exempt employees, which currently exempt employees should be reclassified as non-exempt, and whether to pay the reclassified employees hourly or continue to pay a salary (and pay overtime based on a regular rate of pay based off of the salary).

We will keep you posted on continuing developments (no pun intended).


BOLI Issues Oregon Sick Leave Notice

Oregon’s paid sick leave law goes into effect on January 1, 2016.  BOLI has a web page with the new law and applicable regulations and has a form notice for employers to provide to employees.  The notice must be provided no later than the end of the employer’s first pay period after January 1, 2016 or, for employees hired after that date, at the end of the first pay period for those employees.


The webpage is here: http://www.oregon.gov/boli/TA/pages/index.aspx

The notice is here: http://www.oregon.gov/boli/TA/SiteAssets/Lists/FeaturedContent/EditForm/Sick%20Time%20Notification.pdf



EEOC Issues Guidance for Employees with HIV Infection

Yesterday, the EEOC issued two publications that address important issues for employees with HIV infection.  As the EEOC’s press release explains:

  • Living With HIV Infection: Your Legal Rights in the Workplace Under the ADA” – explains that applicants and employees are protected from employment discrimination and harassment based on HIV infection, and that individuals with HIV infection have a right to reasonable accommodations at work.
  • “Helping Patients with HIV Infection Who Need Accommodations at Work” –  explains to doctors that patients with HIV infection may be able to get reasonable accommodations that help them to stay productive and employed, and provides them with instructions on how to support requests for accommodation with medical documentation.

Although aimed at employees, the publications are also a useful resource for employers who have employees with HIV infection and are struggling with how to reasonably accommodate the employees and concerned they might not have adequate guidance from the employees’ medical providers.

The publications are here:  http://www.eeoc.gov/eeoc/publications/hiv_individual.cfm



A Reminder about Seattle’s Ban-the-Box Ordinance

While Oregon only recently passed a law addressing the use of applicants’ criminal/arrest records in the hiring process, Seattle’s Job Assistance Ordinance has been in place since 2013.  Generally, the Ordinance prohibits ads and applications that automatically exclude applicants with conviction/arrest records. Ads cannot announce that “Felons Need Not Apply” and employers cannot ask questions about convictions/arrest records until after the employer has conducted an initial screening to eliminate unqualified applicants. Applicants must also be given the chance to explain or correct information about conviction/arrest records.  There are exceptions for certain categories of jobs.

More information can be found here: http://www.seattle.gov/laborstandards/job-assistance/workers-guide-to-jao

The text of the Ordinance is here: http://www.seattle.gov/laborstandards/job-assistance/rules


Your Government at Work

Yesterday, the EEOC announced that it had secured more than $525 million for victims of discrimination during 2015.  Of that amount, about $356 million was obtained through mediation, conciliation and settlement (as opposed to through litigation).

The news release is here: http://www.eeoc.gov/eeoc/newsroom/release/11-19-15.cfm

The EEOC 2015 Performance and Accountability Report is here:  http://www.eeoc.gov/eeoc/plan/upload/2015par.pdf


Dying on the job ≠ Quitting

Pursuant to ORS 652.140 wages are due to an employee who quits without 48 hours advance notice within 5 days, excluding Saturdays, Sundays and holidays. Today, the Oregon Court of Appeals ruled that an employee who dies on the job does not “quit” for purposes of the final paycheck rule.  As a result, the employee’s estate does not have a claim for unpaid wages and penalties under ORS 652.140 because the employer did not pay the estate the deceased employee’s wages within 5 days after he died.  As the Court explained:

Although both dying and quitting necessarily involve the cessation of work, “quitting” would not generally be understood to include stopping work involuntarily, either because the employer fires the employee or because the employee involuntarily dies while still employed. Rather, quitting is generally understood to be an intentional and voluntary act—an employee quits when he or she chooses to “give up employment.”

Accordingly, the Court held “ the term “quit,” as used in ORS 652.140(2), means an intentional and voluntary act and does not refer to a person who involuntarily dies while employed.”

Note, ORS 652.190 sets out the procedure for payment of wages when an employee dies and provides for different penalties than ORS 652.140.


Women & Men & Rude Behavior

In case you were wondering, it continues to be unlawful for employers to treat male employees more favorably than female employees when it comes to discipline for similar behavior.  In a recent case out of Florida, informal complaints were made about a female doctor’s “bedside manner.”  The doctor was described as being curt and rude on two occasions, but her behavior did not impact patient care.  Complaints were also made about a male doctor for angry outbursts, use of offensive or foul language directed at staff, and for threatening nurses.  The male doctor’s behavior did impact patient care, because nurses were afraid to call him.  The female doctor was able to avoid summary judgment on her discrimination claim because the evidence showed that she was treated less favorably than the male doctor: she was terminated for her allegedly rude behavior while the male doctor received counseling, was sent to anger management class, and then received a 90 day termination notice after these attempts to fix his bad behavior failed.

The case is available by subscription: Scott v. Sarasota Doctors Hosp., Inc., 2015 U.S. Dist. LEXIS 150408 (M.D. Fla. 2015).