Monday, December 12, 2011 Is Alcoholism A Protected Disability Under The Americans With Disabilities Act (ADA)?
Consider the following scenario: An employee who is an alcoholic returns from his lunch break during which he drank several beers. His supervisor notices that the worker is glassy-eyed, slurring his speech, and smells of alcohol. The supervisor fires him for violating the company's "zero tolerance" alcohol policy. Does the worker have a claim for disability discrimination under the ADA? On these facts, probably not.
The Americans With Disabilities Act (ADA) is a federal law that prohibits discrimination against employees with disabilities. It applies to employers with at least 15 full-time employees. The ADA not only protects employees who are disabled or have a "record" of being disabled, it also protects employees who are "regarded as" disabled by their employer as well as employees who are "known to have a relationship or association" with another person who is disabled.
The term "disability" has a specific meaning under the ADA. Under the ADA, "disability" means (i) "a physical or mental impairment that substantially limits one or more major life activities"; (ii) "a record of such impairment"; or (iii) "being regarded as having such an impairment." See 42 U.S.C. s. 12101. Examples of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, speaking, breathing, learning, reading, thinking, communicating, and working. The statute further defines "major life activities" to include the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Note: Employees who are "regarded as" disabled by their employers do not have to prove that they in fact have an impairment or that they are substantially limited in their major life activities or that their employer believes they are substantially limited in their major life activities. It is sufficient that their employer believes, even mistakenly, that they have a disabling condition. See 42 U.S.C. s. 12102(3).
The first question is whether an employee who is an alcoholic has a "disability" within the meaning of the ADA?
Courts generally agree that an employee suffering from alcohlism has "a physical or mental impairment." They do not always agree, however, that such an employee's major life activities are substantially limited by his condition. This requires proof, usually supplied by the plaintiff, that meets the statutory requirements. That is, the plaintiff must show that his disability (alcoholism) substantially limits one or more of his major life activities. Nevertheless, in most cases, the court will find, or the employer will concede, that an alcoholic employee has a "disability" within the meaning of the ADA.
The second question is whether an alcoholic employee is qualified to perform the essential functions of the position?
Importantly, only "qualified" employees are protected by the ADA. See 42 U.S.C. s. 12112(a) (prohibiting discrimination "against a qualified individual on the basis of disability"). Many ADA lawsuits based on alcoholism lose in court because the plaintiff cannot prove that he was qualified to perform the essential functions of his position. The essential functions of a position are the fundamental duties and responsibilities of the job, as defined and judged by the employer. Significantly, attendance and punctuality are essential functions of most positions. If an alcoholic employee cannot meet these requirements, he may not been deemed "qualified" for the position; hence, he may not be protected under the ADA.
The third question is whether an employer is required to "reasonably accomodate" an alcoholic employee?
It depends. An employer is not required to accommodate an employee's intoxication or the adverse effects of excessive alcohol use. For example, even if an employee has the disability of alcoholism, the employer is not required to allow the employee to arrive late to work due to the effects of a hangover. On the other hand, the employer may be required to accommodate the employee's efforts to obtain treatment for the alcoholism. As an EEOC guidance memorandum explains:
Example: An employer has warned an employee several times about her tardiness. The next time the employee is tardy, the employer issues her a written warning stating one more late arrival will result in termination. The employee tells the employer that she is an alcoholic, her late arrivals are due to drinking on the previous night, and she recognizes that she needs treatment. The employer does not have to rescind the written warning and does not have to grant an accommodation that supports the employee’s drinking, such as a modified work schedule that allows her to arrive late in the morning due to the effects of drinking on the previous night. However, absent undue hardship, the employer must grant the employee’s request to take leave for the next month to enter a rehabilitation program.
The final question is whether an employer can discipline an alcoholic employee for poor performance or workplace misconduct caused by or related to his drinking?
Yes. The ADA expressly provides that an employer "may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee." In other words, there is no "alcoholism" excuse for poor performance or workplace misconduct. Employees who drink on the job or who are drunk on the job or who fail to perform their duties due to drinking or who engage in misconduct due to drinking may be subject to appropriate discipline, up to and including termination. The only caveat is that the employer must treat alcoholic and non-alcoholic employees the same, and may not impose different penalties for the same offenses depending on whether or not the employee is an alcoholic. That is, the employer may not single out alcoholics for worse discipline than their non-alcoholic co-workers. As the EEOC explains:
The ADA specifically provides that employers may require an employee who is an alcoholic or who engages in the illegal use of drugs to meet the same standards of performance and behavior as other employees. This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.
Example: A federal police officer is involved in an accident on agency property for which he is charged with driving under the influence of alcohol (DUI). Approximately one month later, the employee receives a termination notice stating that his conduct makes it inappropriate for him to continue in his job. The employee states that this incident made him realize he is an alcoholic and that he is obtaining treatment, and he seeks to remain in his job. The employer may proceed with the termination.
Example: An employer has a lax attitude about employees arriving at work on time. One day a supervisor sees an employee he knows to be a recovered alcoholic come in late. Although the employee’s tardiness is no worse than other workers and there is no evidence to suggest the tardiness is related to drinking, the supervisor believes such conduct may signal that the employee is drinking again. Thus, the employer reprimands the employee for being tardy. The supervisor’s actions violate the ADA because the employer is holding an employee with a disability to a higher standard than similarly situated workers.
In sum, alcoholism probably is a "disability" under the ADA, and employers may be required to accommodate an alcoholic employee's reasonable efforts at treatment and rehabilitiation (for example, by providing a flexible work schedule so the employee can attend Alcoholics Anonymous meetings). But this does not mean that an alcoholic employee is excused from meeting the employer's required performance and conduct standards. Any violations of these standards, even if caused by or related to the employee's drinking (for example, an on-the-job accident caused by being drunk), may result in the employee being disciplined, up to and including termination.
An interesting case involving the issue of alcoholism recently was decided by Judge Raymond J. Dearie of the U.S. District Court for the Eastern District of New York. Darcy v. City of New York, No. 06-CV-2246, 2011 WL 841375 (E.D.N.Y. Mar. 8, 2011) (link here). In Darcy, the plaintiff was a New York City police officer who claimed that he was transferred to a less prestigious assignment because his superiors believed he was an alcoholic, which he denied, based on his friendship with another police officer who was an alcoholic. He asserted a "regarded as" claim and an "association" claim under the ADA. The court explained that the "regarded as" claim required the plaintiff to prove that he was perceived by his employer to be an alcoholic; it did not require him to prove that the employer's belief was correct or that the employer believed he was substantially limited in any major life activities. With respect to the "association" claim, the court explained that the plaintiff was required to prove that the employer knew he had a relative or associate with a disability and took an adverse action against him because of that relationship. In Darcy, the district court denied the City's motion for summary judgment on both claims. However, the court's decision was based on its retroactive application of the 2009 amendments to the ADA (which broadened the law), which subsequently were held not to apply retroactively. Accordingly, the City has filed another motion for summary judgment, which was pending at the time of this post.
For further discussion about alcoholism and the ADA, see here.
Wednesday, March 30, 2011 Thompson v. North American Stainless: U.S. Supreme Court Upholds Third-Party Retaliation Claim Under Title VII.
After deciding few employment law cases in 2010, the U.S. Supreme Court has issued three noteworthy employment law decisions in the first three months of 2011. These are Thompson v. North American Stainless, No. 09-921 (Jan. 24, 2011), a Title VII case; Staub v. Proctor Hospital, No. 09-400 (Mar. 1, 2011), a case involving the Uniformed Services Employment and Reemployment Rights Act (USERRA); and Kasten v. Saint-Gobain Performance Plastics Corporation, No. 09-834 (Mar. 22, 2011), an FLSA case. This note discusses the Thompson decision, in which the Supreme Court upheld the plaintiff's third-party retaliation claim under Title VII.
Thompson v. North American Stainless
The issue before the Supreme Court in Thompson was whether Title VII provided a cause of action for one employee who was fired in retaliation for another employee's protected activity. On the facts of the case before it, the Supreme Court unanimously held that Title VII did authorize a lawsuit by the second employee. See the opinion here (written by Justice Scalia).
The plaintiff in Thompson worked for North American Stainless and was the fiance of another employee who had filed a complaint of discrimination against the company with the EEOC. The plaintiff alleged that in retaliation for the other employee's complaint, the company fired him. It was undisputed that the other employee's complaint constituted protected activity within the meaning of Title VII's anti-retaliation provision. The Supreme Court also had "little difficulty" finding that firing the plaintiff constituted unlawful retaliation under Title VII. Citing its previous decision in Burlington Northern v. White, 548 U.S. 53 (2006), the Court explained that Title VII's anti-retaliation provision is violated by any employer action that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." To the Court, it was "obvious" that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.
The central question in Thompson, however, was not whether the person who complained to the EEOC had a cause of action for retaliation (she did), but whether the person who was fired in response -- her fiance -- had a cause of action. The Court said yes.
The issue turned on the meaning of Title VII's right-of-action provision, which states that "a civil action may be brought . . . by the person claiming to be aggrieved." Who constitutes an "aggrieved person"? The Court rejected the broadest reading of the statute, which extended the meaning of "aggrieved person" to the limits of Article III standing (i.e., a person claiming an injury-in-fact caused by the defendant and remediable by the court), because "abusrd consequences would follow," for example, authorizing Title VII lawsuits by corporate shareholders who allege that job discrimination harmed stock prices.
Instead, the Court applied a "zone of interests" test to Title VII, which it adopted from existing jurisprudence under the Administrative Procedures Act. Under the "zone of interests" test a person qualifies as "aggrieved," and therefore authorized to file suit, if his asserted interests arguably are protected by the statute. Conversely, a person falls outside the applicable zone of interests "if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit."
Although the Court "decline[d] to identify a fixed class of reltaionships for which third-party reprisals are unlawful," it concluded that the plaintiff "falls within the zone of interests protected by Title VII." As the Court explained:
Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation -- collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.
For useful commentary on the Thompson case, see here, here, and here.
Thursday, February 10, 2011 Lawyer/Lobbyist Who Served As Part-Time Executive Director of Trade Association Was Not Employee Within Meaning of N.Y. Unemployment Insurance Law.
The New York Court of Appeals (the state's highest court) recently decided an unusual employment law case in which it addressed the distinction between an "independent contractor" and an "employee" under the state's unemployment insurance law. Matter of Empire State Towing & Recovery Ass'n, 15 N.Y.3d 433, 938 N.E.2d 984 (Oct. 26, 2010).
The person in question in the case worked as a lawyer/lobbyist in Albany, New York. He was hired by Empire State Towing and Recovery Association to provide them with legal and lobbying services. He later was hired by Empire State to serve as their Executive Director, performing certain "administrative services." He served in this capacity from 1997 to 2006. The Department of Labor ruled that he was an employee and ordered the association to pay state unemployment insurance premiums for him. This decision was affirmed on appeal by the Unemployment Insurance Appeal Board and then by the Appellate Division, Third Department (under a "substantial evidence" standard of review). The Court of Appeals reversed.
In its decision, the Court of Appeals recited the applicable legal test (citations omitted below):
It is well-settled that
“[w]hether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary decision."
An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results. However, “control over the means is the more important factor to be considered." “Incidental control over the results produced -- without further evidence of control over the means employed to achieve the results -- will not constitute substantial evidence of an employer-employee relationship."
So what were the operative facts in this case? As summarized by the Court of Appeals:
Pursuant to the written agreement, O'Connell maintained a telephone and computer database in the name of the association, mailed dues and membership materials, mailed periodic financial statements to board members, and coordinated publication of a journal. He also attended board meetings, maintained a bank account, and had check writing authority up to $500. For greater monetary amounts, O'Connell had to submit documentation accounting for the required amount and obtain the signature of Empire State Towing's treasurer. O'Connell performed all these services from his own law office, was free to set his own schedule, and was not working exclusively for the association.
In 2004, a part-time assistant was hired to help O'Connell in his duties as executive director. It is conceded that the part-time assistant was an employee of the association.
On this record, the Court of Appeals concluded that there was not substantial evidence that the Executive Director was the association's employee; therefore, he was an independent contractor and the association was not required to pay unemployment insurance premiums for him.
This decision is hard to explain. The person in question served as an administrative officer of Empire State and performed specific organizational functions for the association; he was not providing independent professional services (as when he provided legal and lobbying services). Moreover, the person who assisted him in his duties was considered an employee of Empire State, yet the Executive Director was not. This makes no sense. The Executive Director was not a provider of third-party membership services; he worked directly for Empire State. The fact that he only worked part-time and from his own law office didn't change the nature of the employment relationship with Empire State, which clearly exercised control over both the means and the results of the job.
In my opinion, the key fact of this case was that the person in question was a lawyer. I think the Court of Appeals reached its decision because it wanted to protect the professional independence of lawyers. I would be surprised if the Court reached the same decision in an otherwise identical case that did not involve a lawyer. My advice to employers is not to read too much into this decision, which appears to fall outside the main trend of defining most workers (including part-time and at-home workers) as "employees" for purposes of labor and employment law coverage.
For useful commentary on the Empire State case, see here and here.
Thursday, January 06, 2011 2010 U.S. Supreme Court Employment Law Cases: Lewis v. City of Chicago; Rent-A-Center v. Jackson.
Last year was a relatively slow year for employment law cases decided by the U.S. Supreme Court. Two noteworthy cases were Lewis v. City of Chicago, 130 S. Ct. 2191, No. 08-974 (May 24, 2010), and Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772, No. 09-497 (June 21, 2010). Lewis was a Title VII disparate impact case involving a timely charge issue; Jackson was a Section 1981 case involving a mandatory arbitration agreement.
Lewis v. City of Chicago
The issue before the Supreme Court in Lewis was whether a plaintiff who does not file a timely EEOC charge challenging the adoption of an employer's practice that may have a racially disparate impact (that is, have a disproportionately adverse effect on racial minorities) nevertheless may assert a disparate impact claim in a timely EEOC charge challenging the employer's later application of that practice. The Supreme Court held (unanimously) in the affirmative, reversing the decision of the U.S. Court of Appeals for the Seventh Circuit. See the opinion here (written by Justice Scalia).
The basic facts of Lewis are straightforward: In July 1995, the City of Chicago administered a civil service test to over 26,000 applicants seeking to serve in the Chicago Fire Department. After the tests were scored, the applicants were grouped into three categories: (1) those who scored 89/100 or above (deemed "well qualified"); (2) those who scored between 65 and 88 (deemed "qualified"); and (3) those who scored 64 or below (deemed to have failed). Beginning in May 1996 and for the next six years, the City randomly selected Fire Department candidates (who had to meet additional qualifications) from the first group, until it exhausted those candidates, and then randomly selected candidates from the second group.
Significantly, the City conceded that the original grouping procedure had a "severe disparate impact against African-Americans." In other words, that the procedure resulted in disproportionately few black applicants in the top group, which was not justified by business necessity. (Importantly, disparate impact claims do not require, or necessarily imply, that the employer was prejudiced or biased against a particular group, only that the employer's otherwise neutral practice had an unlawfully adverse effect on a particular group.)
In March 1997, the plaintiff (who was in the second group and not selected to be a firefighter) filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). Such a charge is a prerequisite to bringing a Title VII claim in court and must be filed within 300 days of the alleged discriminatory event. The City argued that, because the plaintiff's charge was filed more than 300 days after the City announced the grouping procedure, his lawsuit was untimely and should be dismissed. The district court ruled for the plaintiff, but on appeal the Seventh Circuit agreed with the employer and dismissed the lawsuit. The Seventh Circuit reasoned that the only discriminatory act had been the grouping procedure, and that the subsequent hiring decisions were a mere "automatic consequence" of that act, not fresh acts of discrimination. On further appeal, the Supreme Court rejected the Seventh Circuit's reasoning and held that the plaintiff's lawsuit was timely with respect to each time the City selected candidates from the original list starting in October 1996.
The key portion of the Supreme Court's decision is where the Court explains that Title VII prohibits the "use" of "employment practices" that have a disparate impact on protected groups. The Court found that each time the City selected candidates from the original list, it "used" an allegedly discriminatory "employment practice" within the meaning of the statute. Accordingly, the plaintiff's lawsuit was timely. The Court rejected the City's argument (which had been adopted by the Seventh Circuit) that the only unlawful act was the original grouping procedure, explaining: "Under the City's reading, if an employer adopts an unlawful practice and no timely charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact." On the contrary, the Court ruled that each time the City made employment decisions based on the original list was an actionable event. However, the Court did not decide whether or not the plaintiff had proved that the selection process, in fact, imposed an unlawfully adverse impact on black candidates.
For useful commentary on the Lewis case, see here, here, and here.
Rent-A-Center v. Jackson
The issue in Jackson was, who decides whether a mandatory arbitration agreement is enforceable, the court or the arbitrator? The general rule is that the court decides, unless the agreement contains a "clear and unmistakable" statement that this question is for the arbitrator. In Jackson, the plaintiff argued that this rule did not apply to the arbitration agreement he had signed when he went to work for Rent-A-Center, because the agreement itself was unconscionable (that is, so unbalanced and unfair as to be unlawful and unenforceable). The Supreme Court, in a divided 5-4 decision, rejected the plaintiff's argument and held that the question of the enforceability of the arbitration agreement was to be decided by the arbitrator, as expressly provided in the agreement iself. See the opinion here (written by Justice Scalia).
The majority and dissenting opinions in Jackson discuss and debate various issues surrounding the enforceability of mandatory arbitration agreements in employment. But the take-away point from the case is simple: where an arbitration agreement expressly provides that the arbitrator, not the court, is to decide all issues pertaining to the enforceability of the agreement, then the terms of the agreement will be followed (i.e., the arbitrator will decide), despite any claims by the employee that the overall agreement itself is void or voidable on recognized contract law grounds. These are arguments for the arbitrator to resolve, not the court. The only time the court will resolve the issue is if the employee specifically challenges the express delegation of authority to the arbitrator to decide questions of enforceability. Because the plaintiff in Jackson did not make any such specific challenge, his position was rejected and the dispute was to be arbitrated.
Note: A series of Supreme Court decisions over the past two decades has made it almost impossible for employees to avoid arbitration when they enter into mandatory arbitration agreements as a condition of employment. Consequently, employees, and their counsel, should consider very carefully whether a legal battle over the applicability of an arbitration clause is worth the time and money it will require to litigate (and probably lose) in court.
For useful commentary on the Jackson case, see here, here, and here.
Thursday, December 30, 2010 Are English-Only Workplace Rules Legal? Probably, If Justified On Business Grounds And Narrowly Applied.
A 2003 report by the U.S. Census Bureau, based on Census 2000 data, found that 18% of the total population aged 5 and older (47 million people) spoke a language other than English at home. This was an increase from 1990 (14% or 31.8 million people) and 1980 (11% or 23.1 million people). Census 2010 data almost certainly will show a further increase in the number of foreign-language speaking persons in the United States. Not surprisingly, the most common non-English language spoken in the United States, by far, is Spanish, spoken by 28.1 million people (according to Census 2000 data). Other languages spoken by more than 1 million people include Chinese (2 million), French (1.6 million), German (1.3 million), Tagalog (1.2 million), Vietnamese (1 million), and Italian (1 million). The number and variety of foreign-language speaking persons is even greater in certain large metropolitan areas (for example, Los Angeles and New York City).
What happens when foreign-language speaking persons go to work for businesses whose employees and customers are predominantly English-speaking? Very frequently, these businesses adopt some form of "English-only" workplace rules that either limit or prohibit the speaking of non-English languages at work. Are such rules legal? Do they violate laws against employment discrimination based on race, ethnicity, or national origin?
The U.S. Equal Employment Opportunity Commission, which is responsible for administering and enforcing most federal employment discrimination laws, e.g., Title VII of the Civil Rights Act of 1964, has adopted a strict guideline for English-only rules. See 29 C.F.R. s. 1606.7. According to the EEOC:
(a) When applied at all times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the
language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the Commission will presume that such a rule violates title VII and will closely scrutinize it.
(b) When applied only at certain times. An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.
Thus, the EEOC takes the position that blanket English-only rules are inherently discriminatory, but limited English-only rules can be justified by business necessity. Although the EEOC guidelines do not have the force of law, they are shown considerable deference by courts applying Title VII and other statutes under the EEOC's jurisdiction. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975); EEOC v. Beauty Enterprises, Inc., No. 01-CV-378 (AHN), 2005 WL 276822 (D. Conn. Oct. 25, 2005).
An excellent analysis by a federal district court in New York of the legality of English-only workplace rules is found in Pacheco v. New York Presbyterian Hospital, 593 F. Supp.2d 599 (S.D.N.Y. 2009).
In Pacheco, the plaintiff worked as a "patient representative" in a major New York City hospital. He was an American citizen, born and raised in Puerto Rico, and fully bilingual in English and Spanish. After several patients complained to management about hospital employees speaking Spanish around them -- the patients believed that the employees were gossiping about them and making jokes about them in a language the patients couldn't understand -- the plaintiff's manager told the plaintiff that he was to speak only English when performing his duties, unless he was assisting a Spanish-speaking patient. Shortly thereafter, the plaintiff complained to the hospital's human resources department, which took no action. The disputed ended up in court, where the plaintiff claimed national origin discrimination, under theories of disparate treatment, disparate impact, hostile work environment, and retaliation. The court rejected each of the plaintif's arguments and granted summary judgment to the hospital.
The court's analysis under each theory focused on the hospital's proffered justification for the English-only rule. Specifically, the hospital argued that the English-only rule -- which was a limited rule that did not prohibit the plaintiff from speaking Spanish during breaks and when not in the vicinity of patients -- was necessary for two reasons: first, to promote effective customer (patient) relations; second, to enable the plaintiff's manager (who did not speak Spanish) to supervise and evaluate the plaintiff properly. The court found that these reasons were non-pretextual, legitimate, and lawful: "Given this undisputed record, the case law supports Defendant's claim of business necessity." The court noted that this conclusion was consistent with the EEOC Compliance Manual, which provides that English-only rules may be justified "for communication with customers, coworkers or supervisors who only speak English" and "to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers." See also EEOC v. Sephora USA, LLC, 419 F. Supp.2d 408 (S.D.N.Y. 2005) (upholding English-only rule that only applied when employees were on the sales floor interacting with customers, not when no customers were present or when employees were on break).
In sum, English-only rules that apply to an employee's actual job performance, but provide exceptions for non-work time and non-work communications, probably are legal unless they are applied in an arbitrary or discriminatory manner (e.g., being enforced against speakers of certain foreign languages but not others; see here). But blanket prohibitions on employees speaking non-English languages in the workplace probably are not legal. Such rules are deemed inherently discriminatory by the EEOC guidelines and appear to contradict the reasoning set forth in the Pacheco and Sephora USA decisions. Of course, each workplace situation will be analyzed on a case-by-case basis.
Sunday, December 05, 2010 Are Unpaid Internships Legal? Probably Not.
College students and young workers often perform unpaid internships with companies in industries they are interested in pursuing for their careers. Indeed, internships are common in most "white collar" fields, including publishing, fashion, television, film, high technology, advertising, and law. Unpaid internships can be a "win-win" situation: the intern benefits by obtaining work experience, networking opportunities, and exposure to different job settings, while the company benefits by identifying promising entry-level employees and obtaining some "cheap labor." Alas, the "cheap labor" aspect of internships -- which makes many, if not most, internships economically feasible -- probably is illegal.
In general, unpaid internships for private, for-profit employers violate federal and state wage and hour laws, including minimum wage and overtime laws, unemployment insurance and worker's compensation laws, and payroll and income tax laws. As stated by an official with the U.S. Department of Labor, Wage and Hour Division: “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law." Why not? Because in most cases an unpaid intern is considered an "employee" to which the full panoply of workplace rules applies. (Internships with government agencies and non-profit charitable organizations are excluded from these rules.)
As the Wage and Hour Division recently explained, an unpaid internship must meet the following six criteria to pass legal muster:
1. The internship must be "similar to training which would be given in an educational environment";
2. The internship must be "for the benefit of the intern";
3. The intern "does not displace regular employees" and "works under close supervision";
4. The company "derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded";
5. The intern "is not necessarily entitled to a job at the conclusion of the internship"; and
6. The intern understands that he/she is not entitled to wages for the time spent in the internship.
These are very strict criteria that effectively bar most unpaid internships, which are intended to benefit both the intern and the company; otherwise, why would the company offer the internship in the first place? Yet the Wage and Hour Division has stated unequivocally that a company may derive "no immediate advantage" from the internship. The upshot is that if an intern performs any useful work, however simple or menial or clerical in nature, the intern must be treated as an employee, subject to all applicable labor and employment laws. Failure to comply with these laws can result in liability for back wages, back taxes, and other civil and criminal penalties.
Saturday, December 04, 2010 Ten Common Employment Law Mistakes Made By Businesses.
The contemporary American workplace is subject to numerous federal, state, and local laws that impose strict obligations on businesses (e.g., wage and hour laws, nondiscrimination laws, etc.). Many companies, especially smaller companies, do not fully understand the scope of these obligations and, as a result, frequently (albeit inadvertently) violate the law. These violations can lead to costly lawsuits, as well as civil and criminal penalties. In my experience as a defense attorney and as a plaintiff's lawyer, the most common employment law mistakes made by businesses are the following (in no particular order):
1. Misclassifying employees as independent contractors. In general, only workers who operate their own separate businesses are "independent contractors." Few workers meet this test; in fact, most workers are considered "employees" under the law, which means they are entitled to the full range of workplace protections.
2. Misclassifying non-exempt employees as exempt. In general, all employees are entitled to minimum wage and overtime pay, unless they are "exempt" under federal and state law. The exemption rules (e.g., for executive, administrative, and professional employees) only apply in limited circumstances, however; as a result, many employees who are claimed by businesses to be "exempt" in fact are entitled to minimum wage and/or overtime pay.
3. Not complying with state wage payment laws. New York imposes several specific rules regarding how businesses must pay their employees. These rules include providing new employees with written notice of their rate of pay and regular pay date; prohibiting deductions from wages unless for the employee's benefit and authorized in writing; requiring written contracts for commissioned salespersons; and providing terminated employees with written notice of their last day of work, their last day of benefits, and their right to apply for unemployment benefits.
4. Not having an employee handbook. An employee handbook is an important tool for effective employer-employee relations. It notifies employees of the company's values, policies, and procedures; promotes compliance with labor and employment laws; and helps create an orderly, efficient, and transparent workplace.
5. Not documenting employee job performance. A well-managed company clearly communicates its employees' duties and responsibilities (e.g., through written position descriptions), trains and supervises employees to ensure they are meeting these requirements, and provides regular, objective, consistent feedback (e.g., through written evaluations and, where necessary, disciplinary actions). A lack of accurate, complete, contemporaneous documentation can lead to liability in the event of a lawsuit by an employee.
6. Not training supervisors regarding EEO laws. Federal, state, and local equal employment opportunity (EEO) laws prohibit businesses from taking adverse actions against employees (e.g., demotion, termination) for reasons not related to an employee's job performance, including based on an employee's race, color, sex, age, disability, religion, national origin, sexual orientation, and marital status (to name the most common "protected characteristics"), as well as in retaliation for an employee's good faith complaints of discrimination. It is imperative that supervisors be trained on how to manage employees without violating (or appearing to violate) these laws.
7. Not providing reasonable accommodations for disabled employees. Most EEO laws prohibit businesses from taking adverse actions against employees based on certain protected characteristics, but disability discrimination laws also impose an affirmative obligation on businesses to "reasonably accommodate" disabled employees so as to enable them to perform the essential functions of their jobs. Such accommodations may include restructuring job duties, modifying work schedules, or providing assistive devices. Businesses are required to provide a disabled employee with needed accommodations unless doing so would cause an "undue hardship" to the company (e.g., too expensive, too disruptive).
8. Not obtaining releases from terminated employees. When terminating an employee, businesses should try to obtain a release that waives the employee's potential legal claims against the company. The best way to obtain a release is in exchange for an offer of severance (where appropriate). In general, businesses are not required to pay severance to employees (unless required by an employment contract or a collective bargaining agreement). If they decide to do so (e.g., in connection with layoffs), they should require employees to sign a release in exchange for the payment.
9. Not protecting confidential business information. Every company depends on certain vital, often confidential, information about its business operations, including trade secrets, sales and marketing practices, and customer and client lists. Access to this information should be limited to employees with a "need to know" and should be protected by appropriate nondisclosure, noncompete, and/or nonsolicitation agreements (depending on the nature of the information and the employee's position).
10. Not consulting a qualified employment law attorney. Perhaps the single most important point to take away from this discussion is that businesses need to consult a qualified employment lawyer to ensure they are in compliance with the increasingly numerous and complex laws that carpet the workplace like a minefield. Large companies usually have attorneys and human resources professionals on staff to assist them in this area. Small- and medium-size companies often do not. Their biggest mistake is trying to navigate this minefield on their own.
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