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by M. McClure on Jul 2, 2010 at 11:05 AM

Medical leave can be a reasonable accommodation under the ADAI recently taught a semester of Employment Law at the UALR Bowen School of Law, and the most difficult topic for my very talented students seemed to be the intersection of the ADA, FMLA and Workers Comp statutes.  Most HR professionals would not be surprised by this observation because they struggle with these statutes on a daily basis. Well, it's all about to become even more complicated.

Several courts have recognized that time away from work can be a reasonable accommodation under the ADA. And, the recent amendments to the ADA suggest that the statute will cover many more employees.  The EEOC's website states it pretty clearly: "The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis." 

This change will mean that employers will need to consider the ADA's impact on an employee's request for medical leave.  A recent article by Michael J. Lotito suggests that courts will often consider two questions, among others, when determining whether medical leave is a reasonable accommodation under the ADA: " (1) would the leave fulfill its medical purpose? (i.e., would the employee be able to perform the essential functions of his or her job upon return to work); and (2) would the employee's return to work be relatively close in time?"  Lotito correctly points out that no bright line exists where ADA accommodations are concerned, and that every request for leave should be examined individually. 

Although the EEOC's regulations interpreting the amended ADA were expected out this summer, it looks like they will be delayed.  In the meantime, employers should be aware that the amended ADA could affect the decisions that they make when granting or denying medical leaves.  

 

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by M. McClure on Apr 27, 2010 at 11:51 AM

Emails in  Employment LitigationMost of us have heard stories about emails in the workplace resurfacing in litigation. So, the facts of Elam v. Regions Financial Corp. are not surprising.

In Elam v. Regions Financial Corp., a newly hired teller was frequently sick at work and later discovered that she was pregnant and suffering from morning sickness.  The bank allowed the teller to have a drink at her station and to arrive late due to morning sickness.  The teller had performance issues other than her attendance.  She would leave her cash drawer unlocked and sometimes leave her station in the middle of a transaction.  Although the teller was reprimanded, her behavior did not improve.  Her supervisor sent an email to HR requesting to fire the "pregnant girl teller." Upon HR's approval, the teller was fired.  The teller sued the bank under Title VII for pregnancy discrimination. 

The 8th Circuit Court of Appeals upheld the lower court's ruling in favor for the bank.  The Court did not find any direct or indirect evidence of discrimination.  The supervisor's reference to the teller as "the pregnant girl teller" was not found to be discriminatory because references to a protected status without reflecting bias is not direct evidence of discrimination.  The bank had provided numerous accommodations and had non-discriminatory reasons for terminating her.  Finally, the Court noted that pregnancy does not require special treatment.

The case ended well for the bank.  However, this single email was likely a significant reason for the litigation.  Avoiding litigation is more important than winning litigation.  Remind your workplace that email communication is communication nonetheless and could be the basis of litigation.

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by M. McClure on Mar 15, 2010 at 8:55 AM

EEOC The EEOC seems to send a lot of charges to employers just before the end of each fiscal quarter, which is coming right up on March 31st.  After investigating the facts of an EEOC charge, one of the first decisions that an employer must make is whether to mediate.  

EEOC mediation provides a quick, confidential way to settle a dispute with an employee.  And, we are fortunate that the Little Rock EEOC office is particularly good at mediation.  Here are some issues to consider when deciding whether to participate in EEOC mediation. 

Does the employee still work for you?

Defending a charge is much more complicated when the employee still works for your company.  The risk of retaliation is significant because any adverse action against the employee, even where warranted, may create the appearance of retaliation.  Mediation provides a forum in which the employer and employee can reach a compromise to which both parties agree.  In some cases, the employer may even be able to negotiate the employee's resignation from the company, although that won't be inexpensive. 

How good is your evidence?

No employer is perfect, and sometimes the evidence of the issue is just not as good as it should be. Important documents may be missing or were never created.  Witnesses to the conduct may have already left the company, perhaps not voluntarily, and their recollection of the events may be unpredictable. 

Is this a matter you need to resolve quickly? 

You may have a business reason that is completely unrelated to the charge that requires a quick resolution. Defending an EEOC charge will cost time and money, and those resources may be better directed toward a settlement.   

Is this an issue that you would like to keep confidential? 

The mediation process is confidential; complaints filed in court are a matter of public record. 

Are you willing to put something - probably some cash - on the table?

Don't come to mediation with nothing to offer.  If the employee is still working for the company, you may be able to offer non-cash items like training or reassignment in the company.  If you plan to settle a charge with non-cash benefits, make sure they have significant value or the mediator may come to the conclusion that you are not negotiating in good faith.  

Bottom line: Mediation is not the answer for every charge, but in some instances, it can resolve a complicated problem quickly and confidentially.  

 

 

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by M. McClure on Feb 6, 2010 at 3:52 PM

Questions and answers about Arkansas Employment Law BasicsEvery state has a slightly different approach to employment law issues, and Arkansas is no exception. Here are a few questions that I am routinely asked by employers regarding the details of Arkansas employment law:

How often am I required to give my employees rest breaks or meal periods?
Breaks and meal periods are not required in Arkansas.  The state only requires that you pay employees for the time they work, and it does not require the employer to provide breaks.  Nonetheless, it's a very good idea for employers to give their employees some form of rest break or meal period, because they are, well, human.  If you do not intend to pay the employee during the break, be sure that the break is more than 20 minutes and that the employee is completely relieved of duties. Eating lunch at a desk while working is not a lunch break and must be paid. 

Do I have to give an employee a notice of termination or a copy of his or her personnel file?
No. Neither is required by state or federal law.  Maintaining records regarding your reason for termination for two years is an excellent practice because you may be called on to explain your reasons for termination if an employee believes he or she has be discharged illegally.  

Do I have to have a good reason to fire someone?
No, but.... Arkansas recognizes the at-will doctrine of employment, which allows an employer or an employee to end the employment relationship at any time for any legal reason.  However, you cannot fire an employee for an illegal reason, for example, because of the employee's race, gender, national origin, religion, disability or age. If you fire an employee for an arbitrary reason, you might find yourself explaining that decision to the EEOC. 

Can I withhold an employee's paycheck until he or she returns my equipment?
No.  Arkansas law requires that an employer provide an employee's final pay at the next scheduled pay period, or within 7 days if the employee requests the payment. Don't mess around with paychecks!

Do I have to pay overtime if my employee works more than 8 hours in a day? 
No. Arkansas only requires an employer to pay overtime when the work hours in a pay week exceed 40. 

 

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by M. McClure on Jan 30, 2010 at 3:41 PM

Title VII prohibits gender discrimination based on appearanceWithout being told by their lawyers, most employers know that they shouldn't fire an employee because she's not "pretty." Some employers need a little additional coaching. 

In 1989, the US Supreme Court found that gender stereotyping was a violation of Title VII.  In Price Waterhouse v. Hopkins, the Supreme Court considered whether gender stereotyping disadvantaged a woman with a masculine appearance and mannerisms when compared to men. 

But, does discrimination occur when a female manager fires a female employee because she doesn't have a "Midwestern girl look"? That's just the question the Eighth Circuit recently answered in Lewis v. Heartland Inns.

In Heartland Inns, the plaintiff, Lewis, was by all accounts an excellent employee, and her supervisor recommended Lewis for a promotion to the hotel front-desk during the day shift. Lewis was in the new position for a month when a more senior manager, also female, visited the hotel. The senior manager did not believe that Lewis had the right "Midwestern girl look" for the front desk, and in the past the senior manager had stated that the Heartland staff should be "pretty," particularly at the front desk.  Upon meeting Lewis, the senior manager insisted on conducting her own interview of Lewis, although Lewis had already been in the front desk position for over a month.  

As might be expected, the interview did not go well.  The accounts of the interview varied between Lewis and the senior manager, but the result was Lewis' termination.

The Eighth Circuit reasoned that Lewis did not need to prove that she was disadvantaged in comparison to men, but instead, the court found that "the principle focus of Title VII is the protection of the individual employee, rather than the protection of the minority group as a whole." Therefore, there was no need to show that Lewis was treated poorly in comparison to men. 

Yes, this case expands the theories under which employers can be sued in the Eighth Circuit, but the rule that you should not make employment decisions based on employee's appearance really isn't news.  Unless an appearance standard is a bona fide occupational qualification (Hooters girls?), employers should just close their eyes when they make employment decisions.

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by M. McClure on Jan 16, 2010 at 8:48 AM
Filed in Discrimination | EEOC

Warning signs that the EEOC is targeting your businessThe EEOC has watched the OFCCP collect millions from employers by pursuing claims of systemic discrimination in the employers' hiring processes.  The OFCCP uses statisticians and testing specialists to uncover statistical evidence of discrimination, and this strategy has been remarkably effective for the agency. 

For the last few years, the EEOC has worked to expand individual charges into class claims, particularly in the area of failure-to-hire claims.  The EEOC will closely scrutinize any barrier to hire that the employer puts in place, such as a pre-employment tests, drug screens, or background checks. You will know that you are in the EEOC's systemic discrimination cross hairs if the EEOC issues a Request for Information (RFI) with an individual charge that requests information regarding:

  • Validation studies for pre-employment tests.
  • Hiring policy information for positions unrelated the charging party's position.
  • Background check vendors or policies.

While failure-to-hire claims are the low hanging fruit, the EEOC also looks for class claims that can be based on other seemingly neutral policies, like compensation policies. For example, if EEOC begins asking for pay data that is unrelated to the individual charge, that's a good sign that the EEOC is looking to expand the investigation outside of the individual claim. Attorneys will object to these requests as irrelevant to the charge, but the EEOC's investigative authority is broad.  The Second Circuit recently upheld the EEOC's right to subpoena nationwide records in a charged filed by an individual.  

An employer's best defense to this EEOC strategy is to get your house in order before the EEOC knocks on the door. Federal contractors who have to answer to the OFCCP are familiar with this approach and conduct self-evaluations to determine whether the company has any existing risk.  It's better to address these issues internally before a federal agency does it for you.    

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by M. McClure on Jan 7, 2010 at 9:55 AM
Filed in Negotiation

employment law negotitionMy son has some crazy good negotiating skills.  I'm sure that it doesn't say anything positive about my parenting that he has become such an adept negotiator, nonetheless, it has been instructive. In employment law, I negotiate every day. Business owners negotiate every day. I think we can learn a thing or two from the little guy.

Ethan has basically one negotiating chip: the ability to disrupt the relative peace of our household.  Peace and quiet is important to me, so he's got a pretty solid position.  Here are some of the brilliant ways he plays his one card:

  • Endurance.  The discussion is almost never over with Ethan.  He doesn't leave the negotiating table; he's there for the long haul.  He may not get everything he came for, but endurance is probably his most successful tactic.
  • Knowledge of the facts. Generally, Ethan makes up his facts ("Mom, today is a snow day."  "No, it isn't, son."  "Yes, it is." "No, it isn't."), but he puts them forward with absolute certainty.  Just think how effective he could be if his facts were actually true. 
  • Timing.  Ethan has an uncanny sense for when a potential fit would have the most impact.  Examples are: when we are trying to leave for school, in public, and when everyone is tired. He uses timing to extract concessions.  Which leads to the next point...
  • Know when to go all in. After a reasonable amount of civil discourse, after all potential positions have been explored, and when the timing is right, Ethan is willing to default to his nuclear option: the crying fit.  He doesn't do it often, but when the stakes are high enough and the time is right, he'll go there. I would like to think that this has not been effective for him, but it must have been at some point.  It's the Hail Mary pass, and, I guess, sometimes it works.  Having a nuclear option in your pocket, like "I am willing to make you spend thousands in attorneys' fees and then beat you very badly at trial," is a good idea.  And, you have to be willing to do it. 

Ethan's primary negotiating fault is that on occasion he sets out an unreasonable demand and then refuses to move. (No, you cannot take your Nintendo DS to school.)  Business owners should have more than one position, and they should consider those positions carefully before negotiations begin. Think about what you are most interested in accomplishing and what you can painlessly concede.  Keep the conversation going, know the facts, and know when to go all in. 

 

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by M. McClure on Jan 2, 2010 at 12:42 PM

Arkansas courts, like most courts around the country, closely scrutinize employers' attempts to restrain former employees from competing.  For example, it's generally an up-hill battle to enforce a non-compete agreement in Arkansas

In the absence of a non-compete agreement, some employers turn to the Arkansas Trade Secrets Act to limit competition from a former employee, but this approach just became a little more difficult when an Arkansas court recently narrowed the application of the inevitable disclosure doctrine in the state.  

In Verizon v. Langston, Verizon attempted to prevent a former Alltel/Verizon employee from working for the new Little Rock telecom company, Allied Wireless Communications Corp. (AWCC).  Langston worked for Alltel for twenty-five years until Verizon acquired Alltel, during which time he worked for Verizon in its Transition Planning.  Langston was responsible for transitioning properties to Atlantic Tele-Network, Inc (ATNI) after Verizon sold the properties to ATNI.  Langston resigned in November 2009 and began working for AWCC, a subsidiary of ATNI, as the Chief Information Officer.

Verizon sought to prevent Langston from working for AWCC because it would violate the Arkansas Trade Secrets Act and the non-disclosure portion of his employment contract, which reportedly did not contain a non-compete agreement.  The court denied the injunction, in part, because the court did not believe that Langston would inevitably disclose trade secrets that he acquired with Alltel and Verizon.  

Under the inevitable disclosure doctrine, a court can issue an injunction when it finds that a former employee will inevitably disclose the trade secret to the new employer, even if there is no actual proof of disclosure.  Arkansas courts have accepted this doctrine (see Cardinal Freight v. JB Hunt), whereas courts in California, Florida and Virginia have rejected it. The court did not apply the doctrine to Langston primarily because AWCC took steps to ensure Langston's duties did not pertain to Verizon's confidential information.   AWCC successfully argued that the trade secrets that Langston possessed would not be of value in the role he held with AWCC. 

Although trade secret and non-compete litigation is largely fact-dependent, it appears that employers will now be able to hire employees who possess trade secret information when the employee is placed in a role where the trade secrets are not useful, thus narrowing the doctrine of inevitable disclosure in Arkansas.

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by M. McClure on Nov 13, 2009 at 12:45 PM

Prominent EEOC lawyer says pregnancy may be a protected disability under the ADAAAIt's not official yet, but pregnancy may be the newest protected disability under the amended Americans with Disability Act (ADAAA).  Although the ADAAA does not address pregnancy, the EEOC in its Questions and Answers about the proposed regulations for the ADAAA stated: "Certain impairments resulting from pregnancy, however, may be disabilities if they substantially limit a major life activity."  That statement leaves a lot of room for interpretation - enough room that employers should think carefully before denying accommodations to pregnant employees.

Christopher J. McKinney at HR Lawyer's Blog points out that the EEOC recently filed a complaint in Washington against D. R. Horton, a Fortune 500 home builder, for discriminating against an employee when it fired her after she was put on bed rest for seven months due to pregnancy related complications. McKinney is correct when he says that the fact that the EEOC brought this case under the ADAAA "speaks volumes."  

A recent Arkansas case is a good example of how a pregnancy discrimination case might be more successful under the ADAAA.  The Arkansas Supreme Court recently affirmed summary judgment for an employer in a complaint against the company for discrimination due to pregnancy complications.  In Greenlee v. J.B. Hunt, the employee experienced complications during her pregnancy that required bed rest, but she was fired because she had only worked for the company for four and a half months and was not eligible for additional leave.  The court found that employee was not fired because she was pregnant, but because additional leave was not available to her under the company policy.  

If the Greenlee case had been brought under the ADAAA (which wasn't in affect at the time of the plaintiff's termination), a court may have reasoned that the company failed to accommodate a condition that substantially limits a major life activity and allowed the plaintiff continue to trial.       

It's important to note that the proposed ADAAA regulations state that conditions that are transitory (lasting less than 6 months) will not be protected under the ADAAA.  Therefore, the ADAAA is unlikely to apply to the majority of pregnant employees.  Still, it's too soon to know how far the EEOC's theory on pregnancy as a disability will go, and the fact that the EEOC has staked out this position should give employers pause.

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by M. McClure on Oct 28, 2009 at 10:21 AM
Filed in Social Media

Here's why:  Twitter is a fire hose of information provided by some of the smartest people in the country.  Twitter is known as the premiere platform for building social networks, and I'm grateful to know all the talented people I've "met" through Twitter.  But, it's the information that keeps me coming back every day.

Twitter allows you to follow the thoughts of experts in your industry, giving you near instantaneous access to cutting edge information and trends.  Employment law is made up of both state and federal law, and every state does things a little differently.  I think it's fair to say that employment law changes every day, and Twitter helps me stay current. Many of my clients have employees in several states, and I need to be able to spot issues that arise under another state's law and know when to call in local counsel.  Twitter helps me do that.

Here are a few tricks I've picked up to make the most of time on Twitter.  For starters, I follow employment lawyers, human resources professionals, and business leaders.  This combination brings exactly the kind of information I need to my desktop.   I'm sure you could identify similar experts in your field and find them on Twitter.  Did I mention that all this information is free?

Twitter is also a powerful search engine.  Using Tweetdeck, I run continuous searches on the phrases "EEOC," "FMLA" and "ADA" so that I can see what people throughout the country are saying on these topics. If the EEOC even thinks about making a change, it shows up in my Twitter stream.  You could also search on a geographic location, like "Little Rock," to find what people are talking about in your local area.

More importantly, your customers are probably on Twitter and some may be talking about you.  You should listen. And, your employees are on Twitter too. I'm amazed almost daily at the candid Twitter discussions employees have regarding their workplace. To put it mildly, they seem a little irritated.  

Are there conferences you'd like to attend but don't have time for? Most conferences now assign a hashtag, like #arbar, to a conference so that attendees can tweet their thoughts regarding the conference.  You can search the hashtag and find out what's happening in real time. Many people who are on Twitter also have blogs, and some attendees blog about the conference. Hashtags will lead you to those blog posts.  That's lots of information, and you don't have to go through airport security to get it.  If you do decide to travel to a conference, many schedule "tweetups" before or during the conference.  At a tweetup, you can meet all the smart people you talk with on Twitter in real life - what a concept! 

I do my best to contribute to the Twitter conversation, but I'm confident that I get much more out of Twitter than I'm putting into it.  Just following on Twitter will make you better at what you do.  If I've convinced you to join the twittersphere, let me know, I'm @MelanieMcClure.     

 

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