Many employers understand the need for having a neutral reference policy (i.e., a policy whereby only dates of employments, positions held and sometimes last salary is disclosed). The policies help prevent and defend against potential defamation claims by former employees. Last week, I attended a panel discussion on Post Employment Conduct by Employers and Employees:  Not the Time to Let Your Guard Down at the ABA 5th Annual Labor and Employment Law Conference. 

During conference, Jeffrey Shane of Allison & Taylor made an interesting presentation on the services his company provides. Allison & Taylor specializes in conducting personalized reference checks. One aspect of the company’s business is conducting reference checks on behalf of applicants who believe they are getting negative references from their prior employers and supervisors. The company boasts over 300 attorneys with whom they’ve worked and a 100 percent success rate in stopping untruthful negative references that they discover.

So, if you are an employer that has a negative reference policy, or a supervisor working at a company with such a policy, beware. If you are not following the policy, every reference check you get may not necessarily be on behalf of a genuine prospective employer and may instead be being used to establish evidence for a defamation claim.  Remember, defamation claims are one of the relatively few employment law claims where supervisors can sued and held individually liable.  Thumper said it best, "If you can’t say something nice, don’t say nothin’ at all."

Follow me on Twitter @RussellCawyer.

I have already written about the Herman Cain story and won’t opine further on it here except to say, I have no idea who is telling the truth in the he-said-she-said (and she-said; and she said) story.  The headlines do remind me about what little rights the accused harasser has when, as Herman Cain claims, a false complaint of harassment has been made.   And before you start sending me the hate mail over this HSO, read the remainder of this post.

Continue Reading What Rights Does the Accused Have in Response to a False Harassment Complaint?

The recent scandal at Penn State University is both shocking and troubling.  That high level officials of a such a prestigious university would allegedly overlook or cover-up allegations of the sexual abuse of a child is truly reprehensible.  Notwithstanding the intense media coverage of these events, each of those accused is presumed innocent until proven guilty.  But how does the scandal at Penn State tie into Texas employment law?  Here is the nexus.

Texas, like many other states, is a mandatory reporting state when it comes to the suspected abuse or neglect of a child.  Every person who has cause to believe that a child is being abused or neglected is required to report it.  Certain Texas professionals are required to report with 48 hours.  Similarly, federal law requires employers and IT professionals to report violations of involving child pornography on employer computers to the Cyber Tip Line at the National Center for Missing and Exploited Children (who will in turn report to the appropriate law enforcement agencies).  Employers and employees must understand their legal reporting requirements.

Employees and employers who believe that child abuse or neglect is occurring or that an employer’s computer system possess child pornography should immediately report their concern to the in-house legal department or human resources and also to the NCMEC, the Texas Department of Family and Protective Services or another appropriate law enforcement agency.  Failure to do so may subject the employer and employee to significant criminal jeopardy, fines and a a potential Penn State size media catastrophe –not to mention delaying an end to the abuse of the child.

Follow me on Twitter @RussellCawyer.

The Fort Worth Star Telegram has reported that the Texas Rangers are investigating the leak of Manager Ron Washington’s pre-game speech to the team before Game 7 of the World Series.  The speech was reportedly taped by a member of the clubhouse staff and then leaked to JoeSportsFan.com.  You can listen to the full recording here.  (Foul Language Warning).

Where every employee, customer and vendor carries a high capacity telephone, video camera and tape recorder in the form of a PDA or smart phone, employers should adopt written policies prohibiting employees from making video or audio recordings during working time and while on the employer’s property.  These audio and video recordings can be posted to Facebook, YouTube or Twitter and can have the effect of embarrassing an corporation or disclosing confidential, trade secret information.  Written policies provide a deterrent for employees who would attempt to harm the company through surreptitious records and provide a basis for disciplining employees who violate the policy.  And of course, if employees record communications in Texas to which they are not a party, they are potentially subject to criminal prosecution.  Keep in mind that any policies that prohibit these recordings must either be tailored so as to not violate employees’ NLRA Section 7 rights or should contain a disclaimer that the policy is not intended to nor will it be applied to trample on those rights.

Follow me on Twitter @RussellCawyer.

Last week I was in Seattle attending the ABA’s 5th Annual Labor and Employment Law Conference.  While there have been a number of interesting and informative sessions, I wanted pass along an interesting demonstration that was done by Dr. Anthony Greenwald to demonstrate implicit bias (i.e., the internal, subconscious stereotypes we all allegedly have from our past experiences).

In large scale class actions, lawyers representing the classes have attempted to show systemic discrimination in corporations using, in part, implicit bias science.  Implicit bias science attempts to measure the extent to which individuals have implicit bias and how such bias might be predictive of discrimination.  Dr. Greenwald is the developer of the Implicit Association Test.  The test is designed to measure implicit attitudes people may harbor but are unaware of or would otherwise be unwilling to admit.

For example, in the test demonstrated last week, the group was shown a series of names and asked to answer whether the names were male or female names.  Response times were measured and the quicker the response time, the easier a person’s brain has in processing a response.  Next, the group was shown a series of job titles and asked categorize each as being a leadership position or non-leadership position (e.g., Boss, Supervisor, Leader, Executive, Assistant, Co-worker etc).  After measuring response times, the group’s response times tended to show that male names more closely correlated with leadership positions and female names correlated with non-leadership positions.  This, the test administrator believes, shows that the implicit bias of our group was to associates leadership job titles with males and lower job titles with females.  Dr. Greenwald observed that he has measured implicit bias in many areas such race, gender, appearance (obesity) and age; all useful things in employment discrimination cases –if valid.

While I didn’t come away from the demonstration with the belief that the IAT is useful evidence to prove discrimination or predictive of discriminatory behavior, it was interesting.  Do you have implicit bias?  Dr. Greenwald’s computer based test is available on-line and you can take it here (We took the Gender Career IAT).  What do you think?  Are you more likely to discriminate because your implicit bias?

Follow me on Twitter @RussellCawyer.

 Herman Cain is in the news for all the wrong reasons.  During his tenure at the National Restaurant  Association the Association apparently settled two complaints of sexual harassment involving Cain.  

I have no idea what the underlying allegations were against Cain or whether the settlements were made to avoid inconvenience and buy peace or because the allegations had legs and carried potential exposure.  I know one thing about the Cain complaints –continued defense of the complaints would carry additional significant expense to the Association.

Employers settle employment disputes for all manner of reasons; but rarely because the employer believes it violated the law.  Litigation is expensive, distracting and inconvenient for companies.  While the statutory damages caps for federal employment civil rights claims have not increased in twenty years, the rates of attorneys defending those cases have increased many times over.  A $300,000 damages cap case in 1991 was much more significant compared with the fees that would be incurred in defending that case.  Today, the attorney’s fees incurred in defending the same case would be a much greater percentage of the potential damages as it would have been in 1991. 

For the same reasons employers should not use arrest records in making hiring decisions (i.e., arrests are no indicia of guilt), the mere fact a company settled an employment dispute is no indication that the law was violated.

By the time most of you read this, I will be headed to Seattle for the ABA’s 5th Annual Labor and Employment Law Conference.  Attended this year by approximately 1,300 labor and employment attorneys from across the country, the ABA’s conference provides some of the most comprehensive coverage of current developments in U.S. labor and employment law.

One great thing about the annual ABA conference is that it makes the program materials available on-line.  If you can’t get to Seattle this year, but want to review the materials, check out the dozens of papers that will be presented at this year’s conference here.

Also, if you want to follow the Seattle Conference live on Twitter, you can by following @abalel or #abalel.

Follow me on Twitter @RussellCawyer.

In a recent pre-ADAA case, the Fifth Circuit Court of Appeals held that a former UPS employee’s limitations caused by Type II diabetes were not disabling and that UPS did not fail to provide reasonable accommodation to a known disability.  Despite the fact that this case was based on pre-ADAA law, there are still some useful takeaways that will apply notwithstanding the ADAA.

Rommel Griffin was a 28-year employee of UPS who suffered from Type II diabetes.  He worked in a supervisor/management capacity on the twilight shift from 2 to 10 p.m.  After Hurricane Katrina, Griffin experienced unusual numbness and pain that his doctor attributed to stress.  He took a paid leave of absence to complete an outpatient behavioral counseling program.  After completing this program, Griffin was better able to manage his stress and his symptoms improved.

Griffin was released to return to work and upon his return learned that his job had been filled.  Griffin sought out two other positions; neither of which he was awarded.  Ultimately, he was assigned the position he previously held; albeit on the midnight shift.  Upon being told he was assigned to the midnight shift, Griffin delivered a letter titled "Accommodation Request" where he said that that his doctors required that his schedule be adjusted to daytime hours to accommodate his diabetes.  UPS requested additional information from Griffin and his doctors to evaluate the request for accommodation. 

In response to UPS’s request, and key to the court’s decision, were Griffin and his doctor’s response.  Griffin wrote a letter stating that "My diabetes is a condition that does not have to be a disability if I manage it properly, but to do so I will need UPS to make the accommodation to permit me to work days."  His healthcare provider indicated "No" in response to the question regarding whether Griffin’s impairments substantially limited his ability to perform any major life activities other than working.  None of the information provided by the physicians said that Griffin needed daytime work hours.  As a result of this information, UPS denied Griffin’s request for accommodation.  Shortly thereafter, Griffin tendered his notice of retirement.  Prior to this retirement, he made no complaints to human resources about the denial of accommodation nor did he participate in UPS’s formal dispute resolution program.  Like UPS, the trial court also concluded that Griffin was not disabled and granted judgment in favor of the company.

On appeal, the court reviewed the decision that Griffin was not disabled.   The court noted that Griffin had been able to manage his diabetes for years, without complication, so long as he maintained his regimen of medication, meals and rest.  In this mitigated state, pre-ADAA law, Griffin’s impairments could not be considered to be substantially limited.  Importantly, the court observed that neither it, not the Supreme Court, has recognized the concept of per se disabilities and that Griffin’s limitations were on the moderate end of the diabetes spectrum thereby not amounting to significant limitations on any major life activity.  Consequently, the court of appeals also found that Griffin was not disabled. 

Similarly, the court also affirmed judgment against Griffin on his failure to provide reasonable accommodation claim.  The court affirmed judgment on this claim because there was no evidence that UPS was unwilling to engage in a good faith, interactive process regarding his request for accommodation.  None of the information submitted by Griffin’s doctors requested that he be assigned only daytime hours.  Moreover, Griffin admitted that his diabetes does not have to be a disability if managed properly. 

It should be clear that the Court’s analysis of whether Griffin was disabled or diabetes qualifies as a disability has been superseded by the ADAA.  However, there are still some good analysis that survives the changes made in the ADAA.  First, where the information provided by the employee’s doctor fails to demonstrate that the employee is disabled or that the particular accommodation requested is necessary because of the employee’s disability, the employer does not fail to provide reasonable accommodation to a known disability.  Second, where the employee terminates the interactive process through voluntary resignation or retirement, a failure to provide reasonable accommodation claim is difficult to maintain because it is difficult for the court to determine what measures would have been taken had the accommodation discussions continued.

You can download a full copy of Griffin v. UPS, Inc. here.

Follow me on Twitter @RussellCawyer.

Some of you may have noticed that my regular blogging activity has been less-regular.  With the Texas Rangers winning the American League Championship to advance to the World Series and a number of key depositions I’ve been preparing for and taking, time dedicated to the blog is in short supply.  I hope to return to more regular activity once the World Series concludes.

And when regular blogging resumes, look for updates from the ABA’s National Labor and Employment Law Conference from Seattle that I will be attending from November 2-5.

Go Rangers!

Follow me on Twitter @RussellCawyer.

In this current political cycle there is a lot of talk about the adverse effect unnecessary governmental regulation has on business.  Here is one example.  The FMLA requires employers to post notice of FMLA rights (and include an FMLA policy in their handbooks) even if they have no FMLA eligible employees that can take FMLA leave.  Employers with fifty or more employees have to post notice of FMLA rights even if they do not have fifty or more employees within seventy-five miles of one another.  As written, this is a ridiculous regulation.  The regulation requires employers to advise employee about rights that they don’t have.  Do you think some of those ineligible employees might be confused about the rights?   If I’m an employee, I’m not thinking that my employer would include policies in a  handbook that have no applicability to me.  Indeed, based on the employer’s inclusion of such a policy in its handbook, I would likely think that government-mandated FMLA leave was available to me.

Certainly I don’t think this specific regulation is cause of our Nation’s economic troubles.  It is, however, an example of how regulation can place ridiculous obligations on business.  Hopefully the political debate will cause all involved to require governmental agencies to review the regulations they put in place to determine which are necessary and eliminate the ridiculous ones.  

Follow me on Twitter @RussellCawyer.