Unplug: Will Employees Soon Have The “Right to Disconnect?”

If a proposed law is enacted by the New York City Council, employers would be prohibited from requiring employees to check and respond to email or other electronic communications during non-work hours. The bill allows for exceptions in “cases of emergency” and would require employers to publish a written policy governing work-related communications during non-work hours.  The bill includes an anti-retaliation provision, and reserves the right to impose different levels of civil penalties, up to two thousand five hundred dollars, for violations.

Excluded would be:

  1. employees whose terms of employment require them to be on call twenty-four hours a day on days when they are working, in which case it shall only apply on days off, including paid time off; and,
  2. independent contractors who do not meet the definition of employee under section 190(2) of the labor law.

Interestingly, the bill does not carve out an exception for exempt employees who are paid a salary for all hours worked.

If the bill passes, New York City will be the first city in the United States to enact such a law. It could drastically effect the way companies that conduct business in New York City engage with their employees.

Supreme Court Declines to Review Seventh Circuit Case Finding Extended Leave of Absence Is Not a Reasonable Accommodation

The United States Supreme Court declined to review a decision from the Seventh Circuit Court of Appeals that held a two-to-three month leave of absence following the exhaustion of leave under the Family and Medical Leave was not a reasonable accommodation under the Americans With Disabilities Act.  Severson v. Heartland Woodcraft, Inc.  For more information on the ruling and the Seventh Circuit’s decision, please see our Disability, Leave & Health Management Blog by clicking here.

Jury May Find Pregnancy Discrimination Where Employer Refused To Assign Work To Avoid Injury To Pregnant Worker

Pregnancy discrimination can arise from an employer’s effort to “protect” a pregnant worker from harm, just as it can from other adverse actions.  In Cameron v. NYC Dept. of Educ., 15-cv-9900 (S.D.N.Y), it was alleged that plaintiff no longer received teaching assignments after her pregnancy became visible and known.  According to plaintiff, the principal told her she was not contacted for substitute work because the school wanted to avoid liability in the event she became injured.  Plaintiff alleged, among other things, that the school  engaged in pregnancy discrimination in violation of Title VII and the New York City Human Rights Law.  The defendants denied the allegations.  In denying the employer’s motion for summary judgment the Court found that a jury reasonably could conclude that plaintiff had been discriminated against because of the direct evidence of discrimination that she presented.

That’s What Friends Are For: Federal Court Extends Retaliation Protection to Employee’s Friend

Picture this scenario: Employee A brings a sexual harassment claim against Company. Employee B, who is friendly with Employee A believes the Company has taken adverse actions against her because of her friendship with Employee A, such as transferring her to a different location where she was denied her own office for six months and was directed to perform tasks she was not required to do.  For these and other reasons, Employee B asserts that her job performance suffered due to these alleged retaliatory actions.  She sued under Title VII of the Civil Rights Act of 1964 and the employer moved to dismiss.  The dismissal motion was denied.

When employers think about retaliation claims, they usually anticipate them from the worker who reported (or filed a claim alleging) harassment or discrimination. However, according to the U.S. Supreme Court, retaliation claims also can be brought by those associated with a claimant – like Employee B.  To establish a prima facie retaliation claim, a claimant must show (1) that she engaged in a protected activity; (2) that the employer took a materially adverse employment action against her; and, (3) that a causal connection exists between her protected activity and the adverse action.  In this instance, the trial court found that the co-worker’s claim established, at the pleading stage, that she engaged in protected activity by being “associated with a co-worker who indeed did complain of sexual harassment.”  The Court also found that the employer’s action taken after her transfer were sufficient at this early stage to allege an adverse employment action.

Employers should be careful not only to avoid taking adverse action against those who bring claims, but also co-workers who may be affected by association. Further, employers should also be aware that even a transfer can rise to the level of adverse action in some cases.

Second Circuit: Sexual Orientation Discrimination Covered by Title VII

In a divided en banc opinion, the Second Circuit Court of Appeals ruled that sexual orientation discrimination is covered by Title VII’s ban on gender discrimination.   Deepening a Circuit split within the U.S. Courts of Appeals, the Second Circuit adopted the reasoning of the Seventh Circuit in Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc), and held that Title VII’s prohibition against sex discrimination is sufficiently broad to prohibit discrimination on the basis of sexual orientation.   Taking a diametric view, the Eleventh Circuit had ruled that Title VII does not encompass sexual orientation discrimination.  This split among the Circuits may push the United States Supreme Court to review the application of Title VII to sexual orientation claims.  While the federal courts (and perhaps Congress) may address whether Title VII does so, many state/city laws already prohibit sexual orientation discrimination.  Since the state of federal law is uncertain, the safer course is for employers to review personnel policies and practices to limit decision-making to job-related conduct and qualifications.  For a full summary of the Second Circuit’s decision, please click here

 

NLRB Vacates Last Year’s Joint Employer Standard

In an unusual reversal, the NLRB today vacated its 2017 decision in Hy-Brand Industrial Contractors, Ltd., that set a new standard for determining joint employer liability.  The Board decision arose due to an inspector general report that faulted board member William Emanuel for improperly participating in the Hy-Brand case.  For a more in depth discussion of the ruling and its implication, see the blog post on our Labor & Collective Bargaining Blog:

NLRB Vacates Hy-Brand Joint Employer Decision Following Inspector General Report

Employer’s Ultimatum Supports Employee’s ADA Failure to Accommodate Claim

The United States District Court for the Southern District of Alabama in McClain v. Tenax Corp. recently denied in part an employer’s motion for summary judgment on a disabled employee’s failure to accommodate claim under the ADA.  The Court held the ADA-required interactive process never took place where the employer’s issued an ultimatum to the disabled employee in response to his request for a reasonable accommodation.  The facts show the importance of a well-documented interactive accommodation program.  In this case, an employee suffering from hand and foot deformities worked full-time as a janitor until the employer faced a production slowdown.  The slowdown led to the employee’s position becoming part-time.  In an effort to restore him to full-time, the employer offered a part-time pallet-wrapping position to supplement his part-time janitorial position.  After just two days of performing the part-time pallet-wrapper position, the employee advised his manager he could not perform the job because of his physical impairments.  The employee requested an accommodation whereby he be permitted to return to work as a full-time janitor.  Despite his complaints to multiple managers, they indicated he could either do both positions or quit.  Given no other options, the employee resigned.  He was not fired, but an ultimatum was presented. 

The Court determined that under the ADA the employer had no obligation to create a new position (i.e., a full-time, rather than a part-time, janitorial position) for the employee as a reasonable accommodation.  However, the Court ruled that the employer’s actions could be viewed by a jury as unlawful.  By giving the employee the all-or-nothing ultimatum it failed to engage in the mandatory interactive process, which requires interactive discourse between the employer and employee. 

 

Medical Residency Program Demonstrates Importance of Documenting and Consistently Applying Job Requirements

In Rodrigo v. Carle Foundation Hospital, No.16-1403 (7th Cir.), plaintiff was a medical resident in a three-year residency program (the “Program”).  In addition to completing certain rotations and passing parts one and two of the United States Medical Licensing Examination (“USMLE”) or (“Step 1” and “Step 2,” respectively), residents were required to pass Step 3 before advancing to the third year of the Program.  Residents who failed Step 3 more than two times would be terminated from the Program.  In light of performance issues, despite a number of accommodations, the resident failed Step 3 three times and was informed that he was not eligible to continue in the Program.  Upon request, he was permitted to resign in lieu of termination.  Two days later, he requested reinstatement and asserted that he had been under tremendous pressure and that “severe insomnia,” among other things, caused him to fail Step 3. Carle declined to reinstate him and Rodrigo filed suit, asserting claims under the Americans With Disabilities Act.  The Seventh Circuit held that Rodrigo’s discrimination and failure-to-accommodate claims failed because Rodrigo could not show that he was a “qualified individual.”  The Court determined that Rodrigo could not satisfy the perquisites of the position or perform the essential functions of the job because he could not pass Step 3 in the Program’s required time frame.

This decision demonstrates the importance of well-defined job (program, in this case) requirements and clear and timely counseling of deficiencies and efforts to assist the failing individual.

Inclement Weather May Require Employers To Warm To Reasonable Accommodations

To enable employees to deal with natural disasters and severe local weather, employers should prepare to address issues arising from employees’ inability to get to work.  By itself, being stuck at home because of a blizzard is not a protected activity.  This constitutes a personal absence warranting no protection under the law.  However, if the office is open and inclement weather precludes an employee from coming to work because of his or her medical condition, the employer may have an obligation to engage in an interactive process to reasonably accommodate that travel limitation.  Employers must ask whether the employee can perform the essential functions of his or her job, with or without a reasonable accommodation, from an off-site location.  If coming to an office is an essential function of performing an employee’s job, then, it would seem, that an employee cannot work. 

Whether an employee can work effectively from home is a fact-intensive examination.  Keep in mind that permitting off-site work as an accommodation of personal issues such as distance from the office, child-care, or other nonmedical challenges would seem to make it more likely that remote work for disability related reasons is  deemed “reasonable.”  Rather than face costly litigation, a wiser course is to engage in an interactive discussion with the employee to satisfy the employer’s obligation to engage in an interactive process.

Workstation Relocation Creates Viable Claim for Retaliation

The United States District Court for the District of Columbia recently permitted a Title VII retaliation claim to proceed to trial based on allegations of retaliatory relocation of a worker’s workstation.  In Massaquoi v. District of Columbia, the plaintiff was relocated to a new workstation one month after he complained to his supervisor about disparate treatment from his co-worker (who later became his new supervisor).  The plaintiff’s new workstation was in a smaller and noisier location and, according to the plaintiff, made him feel claustrophobic.  The plaintiff, who alleged he suffers from anxiety, submitted to his new supervisor a request to move his work station as an accommodation of his alleged disability. This request was denied. The District argued that the move was part of a division-wide realignment which relocated the plaintiff near his work unit. The Court, however, found sufficient evidence to show the relocation was retaliatory, including evidence showing his relocation occurred one month before the division-wide realignment and that the record was void of any evidence that other employee workstations were relocated as part of the alleged realignment. The District also failed to offer an explanation for denying the plaintiff’s request to be relocated to a quieter area as an accommodation.

While the Court acknowledged that the facts supporting plaintiff’s claims of retaliation could be viewed as minimal, it was sufficient to survive summary judgment.  The takeaway is clear:  employers should take caution when making changes to the terms or conditions (even physical conditions) of employment after an employee engages in a protected activity.  Here, simply moving a workstation to a less desirable location proved to be enough to allow the plaintiff to proceed toward trial.

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