How to Avoid Employment Claims? Lead By Example.

Those of you who have attended our best employment practices presentations at the Oregon Bureau of Labor and Industries’ Annual Employment Law Seminars know that we encourage you to train your managers and supervisors to lead by example. If your workforce sees that your managers engage in racist, sexist, or otherwise discriminatory conduct, your workforce is likely to assume that sort of conduct is condoned. That sort of assumption can cost you a lot of time and money, employee turnover, and rotten workplace morale.

A recent settlement announced by the EEOC illustrates this point. The EEOC filed a lawsuit against Battaglia Distributing, a grocery wholesaler and manufacturer. The lawsuit alleged the employer “tolerated” a workplace that was racially hostile to its African-American dock workers. Specifically, the EEOC alleged that its investigation of worker complaints showed that since at least 2007, black employees had been harassed due to their race, including being subjected to racial slurs, such as the “N-word,” by co-workers and “managers.” The suit also alleged that management failed to take action against the harassment even though employees complained. Rather than go to trial, the employer eventually settled for nearly $1 million.

You should regularly train your managers to set the standard of lawful conduct at your workplace. You pay them to lead. Make sure they do.

EEOC Focusing on GINA

Recent EEOC settlements indicate that the agency is aggressively pursuing employers for violations of the federal Genetic Information Non-Discrimination Act (GINA). GINA prohibits the use of genetic information, which includes family medical history, in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.  Similarly, under Oregon law, it is an unlawful employment practice for any employer to subject any employee or prospective employee to any genetic test or to seek to obtain, to obtain or to use genetic information of an employee or a prospective employee.  An employer who requires employees or applicants to complete a medical questionnaire in connection with a pre-offer medical examination will violate GINA (and Oregon law) if that questionnaire includes questions about the employee’s family medical history.   Of course, the employer will also violate these laws if it denies employment to an applicant based on their family medical history.

Bottom line: double-check any forms used in connection with employee/applicant medical examinations and (with the exception of forms used to certify medical leave to care for a family member) delete any questions that solicit information about family medical history.

More information about GINA can be found here:

Employees Still Cannot Come to Work Stoned

Yesterday, Oregon legalized recreational use of marijuana.  This change in the law does not mean much for employers.  As the Oregonian explained: “Measure 91 does not change Oregon employment law. Employers may mandate drug testing and require employees to follow drug-free workplace policies.”

Marijuana continues to be illegal under federal law, and unless and until it is legalized by the U.S. Government, employers can prohibit drug use and discipline employees who test positive for any detectable amount of marijuana (or other illegal drugs).

We anticipate guidance from BOLI on this subject and will post as we get more information and insight from BOLI (and any other Oregon governmental agency that weighs in).

Ability to Comply with Company Policies May be an Essential Function of a Job

On Monday, the U.S. Supreme Court refused to consider an employee’s challenge to lower court rulings that found that the employee’s termination did not violate the ADA. The employee was terminated from his job as a financial advisor after he removed the hard drive from his work computer (which contained confidential information) and took it to a friend’s house.  The employer had multiple written policies addressing the treatment and protection of confidential/proprietary information, and expressly prohibited removal of confidential information from the employer’s premises.  After the employee was terminated, he alleged that he took the computer while he was “in the midst of a psychotic episode” which was a manifestation of bipolar disorder, and that his termination violated the ADA.

The District Court found that there was no evidence that the employee ever told his employer he was bipolar or asked for any accommodation. The Court also found that even if the employee had a disability (and the employer was aware of the disability), the employee was not qualified to perform the essential functions of the job – since one of those functions was to maintain protect the employer’s highly sensitive and proprietary information.  The Court found that the employer’s security policies were an integral part of its business and that the employee’s failure to follow the policies rendered him unable to meet the essential requirements of his job (with or without a reasonable accommodation).

It is unclear how a court in the Ninth Circuit would address this issue. It is clear, however, that in certain circumstances, employees, whether or not they are disabled, can be required to comply with employer rules and policies, provided such policies are integral to the employer’s operations.

The citation to the District Court decision is Foley v. Morgan Stanley Smith Barney, LLC, et al., 2013 U.S. Dist. LEXIS 28873 (S.D. Fla. 2011).

Facebook Posts Advocating Insubordination are Not Protected

We have posted before about the protections afforded to employee social media posts under Section 7 of the National Labor Relations Act. Yesterday, the NLRB made clear that no protection is available to employees who advocate multiple detailed acts of insubordination (rather than engage in a concerted effort to improve or address the terms and conditions of their employment).  The employees exchanged multiple Facebook posts in which they detailed all the ways they would break the employer’s rules and act to the detriment of the employer when they returned to work.  The Facebook posts were laden with expletives and included statements by the employees about how they would: refuse to obtain permission for organizing events; spend the employer’s money without authorization; teach kids (the constituents served by the employer) to graffiti walls and play music loud; take advantage of the employer by not doing their jobs; neglect their duties; and destroy the employer (“Let’s f*ck it up”).

The NLRB found that the statements were not protected and the employer’s decision to terminate the employees justified. The NLRB explained: “The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the [employer] concern that [the employees] would act on their plans, a risk a reasonable employer would refuse to take. The [employer] was not obliged to wait for the employees to follow through on the misconduct they advocated.”

Two One Armed Men

This week the EEOC announced a settlement and a lawsuit both involving employees with one arm. The settlement arose from an employer’s termination of an employee with one arm after a customer sent the employer a note that said: “The company is a joke. You sent me a one-armed security guard.”

The lawsuit arose when an applicant, who had prior experience bussing tables, was told to show up to work as a busboy at a sushi restaurant and then, when he arrived, was told by the owner that he could not bus tables because he had only one arm.

The lesson here: Customer and employer perceptions that an employee cannot do a job because of a disability may lead to liability.

Ninth Circuit Rules for Employer in Discrimination Case – But Still a Cautionary Tale

This month, the Ninth Circuit held that an employee’s discrimination claims were properly dismissed because the employee had failed to raise relevant issues of fact for a jury consider. Nonetheless, the time and expense of this litigation might have been avoided entirely with stronger anti-discrimination training in the workplace.

The employee brought claims of employment discrimination on the basis of age, race, and national origin. The employee alleged he was referred to as an “old dog” and a “crazy Canadian.” The trial court and the Ninth Circuit concluded that such isolated remarks fail to rise to the level of direct evidence of discriminatory motive. Notwithstanding the Ninth Circuit’s decision, employers should understand that such comments should not be made in the workplace and employers should conduct employee training to prevent such comments. Employers should also have policies in place outlining complaint procedures, properly investigate complaints about such comments, and discipline employees who make such comments.

You can read the decision in McClain v. County of Clark, 2014 U.S. App. LEXIS 19353, 1-4 (9th Cir. Nev. Oct. 10, 2014) here:

Non-Disparagement Clauses in Settlement Agreements

When resolving employment-related claims brought by former employees, employers frequently seek to include a provision that prohibits the former employee from disparaging the employer. Non-disparagement provisions in settlement agreements can be enforceable.  However, because of the EEOC’s position that employees cannot be required to waive their rights to file a charge with the EEOC or their right to participate in a proceeding conducted by the EEOC, employers should not seek to prohibit disparagement in such a way as to suggest that an employee cannot participate or speak freely in the context of an administrative claim or proceeding.  Where a non-disparagement provision is included in an agreement with a current employee, employers also need to draft the provision to avoid violation of Section 7 the NLRA, which prohibits restrictions on employees right to engage in concerted activity (which may include negative  conversations about the employer).



Employers Must Provide Reasonable Accommodations for Pregnancy-Related Disabilities

Another EEOC lawsuit demonstrates the trouble employers can get into for failure to accommodate pregnant related disabilities under the ADA.

Earlier this week, the EEOC sued The Lash Group, a Charlotte, N.C.-based consulting company, alleging that it refused to provide a reasonable accommodation to an employee with post-partum depression and instead fired her because of her disability. The employee worked as a reimbursement case advocate when she went on maternity leave. The employee received short-term disability benefits while on maternity leave and advised the disability benefits carrier that she needed additional unpaid leave due to post-partum depression. The EEOC alleges that the employer initially fired the employee, but later extended her short-term disability leave. When the employee was medically released to return to work, she was not returned her to her position as a reimbursement case advocate because her position had been filled. The employer also refused to transfer her to vacant positions for which she was qualified as a reasonable accommodation and instead forced her to find and compete for vacant positions within the company. The employee allegedly applied for three vacant positions for which she was qualified, but The Lash Group instead terminated her because of her disability.

Employers must understand that while pregnancy itself is not a disability under the ADA, some pregnancy-related health conditions, such as post-partum depression, may constitute disabilities. Employees with these conditions are entitled to reasonable accommodations, which might include extending unpaid leave or transferring the employee to a vacant position for which she is qualified, unless the employer can prove that providing accommodation would pose an undue hardship.

Check Your Forms

In a lawsuit recently settled by the EEOC, the employer was alleged to have included a text box on an internal form that sought age-based information for certain applicants and allegedly resulted in the exclusion of qualified applicants over the age of 50 for territory manager positions. The EEOC does not specify what was in the text box other than “an age-based hiring consideration.”  Nevertheless, the settlement is a reminder to employers to periodically review applications and other internal forms to make sure job criteria or other data collected does not result in screening out protected classes of applicants or employees.