Reasonable Accommodation Requires More

How much accommodation is enough?  There is surprisingly little caselaw on the subject.  Most issues arising under the old ADA concerned whether a person was truly a person with disability.Now that the ADA hs been substantially amended, we will surely start seeing more accommodation issues.  In EEOC v. UPS Supply Chain Solutions, we see a case addressing the issue of how much accommodation is "reasonable."  In this case, the employee had been deaf since birth.  His first and primary language was American Sign Language.  He reads and writes at the 4th grade level.  That is not unusual for people who have been deaf since birth.  Many ASL signs do not correlate to written words, and vice versa.  

In this case, UPS used an ASL translator sometimes but often relied on written communication. When the employee would not know a written word, they would tell him to look it up in the dictionary.  When that did not help, UPS provided nothing further.  The employer held weekly and monthly meetings - the employer relied on written agendas, notes and emails to convey the information in these meetings to the employee, Mauricio Centeno.  The company refused to provide an interpreter for meetings that lasted less than two hours.  That level of accommodation is not enough, according to regulation.  Lack of a translator at key meetings is the same as no translator at all.  Centeno said he could not understand what was in some of the written communications.  UPS would not hire a translator for the weekly and monthly meetings and trainings.  

The EEOC advised Centeno that he did not need to attend meetings without an interpreter. Centeno missed some meetings.  The employer then told him he had to attend all meetings.  Later, he was counseled in writing for his behavior in the lunch room.  The EEOC later filed suit based on the employer's failure to accommodate. 

The 9th Circuit reversed the summary judgment in favor of the employer. The appellate court said at the least, there is a fact question whether this accommodation was "reasonable."  The employer never claimed the obvious defense that the translator was too expensive.  Translators in the San Antonio area charge anywhere from $75-100 per hour.  The appellate court wrote:

“In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.

 

See decision.  Frankly, I am surprised the lower court granted summary judgment.  As Workplace Prof says, this is one the employer should settle.  If the employer wishes to fire or discipline an employee for violating policy, the employer must make certain the employee understood that policy. 

Judge Orders Facebook Updates to be Produced

In a recent decision, a federal court in Southern indiana ordered two plaintiffs to turn over their Facebook entries, wall postings, photos, groups joined, etc.  See report.  Mike Maslanka reports that the EEOC filed suit alleging sex harassment on behalf of two women.   See EEOC v. Simply Storage Management, LLC.  The Court ordered the women to produce the Facebook updates, wall postings, groups joined, etc. that related to their emotional status.  As the court noted, any posting by the two women is capable of leading to admissible evidence regarding their emotional state for the time period in which they claim severe emotional distress.   The court limits its order to this particular case in which the two women claim post-traumatic stress disorder.  The women do not claim "garden variety" emotional distress.  

The ruling is in keeping with prior decisions that do allow for great discovery when victims claim severe emotional suffering.  The new aspect is that the judge orders production of password protected or "friend protected"  information.  

As I have had to explain to a few clients, when you file suit, you do give up some privacy rights.....

Persons with Disabilities Have Higher Rates of Unemployment

 People with disabilities have a much higher rate of unemployment.  See Wall Street Journal report.  The unemployment rate last year was 14% for persons with disabilities.  As of July, 2010, the rate has risen to 16.4%.  

Texas Workforce Commission Collected $4.7 Million in Unpaid Wages

It takes months for Texas Workforce Commission to complete an investigation of a wage claim.  See San Antonio Express News story.  TWC enforces the Texas Payday Statute and other laws.  They also investigate wage claims.  They receive 14,000 claims each year by workers who were not paid. But, as I have explained to many potential clients, do not expect much from TWC.  

Even if they conduct an actual investigation, they typically do nothing more than send a letter to the employer finding that the employer owes a certain amount of unpaid wages.  But, TWC does some good for workers.  In 2009, they found 5,977 claims to be valid and collected $4.7 million in unpaid wages.  See TWC's summary of the Texas Payday Statute here.  Note that contrary to frequent practice, the employer is not authorized to deduct items from a worker's paycheck or commissions unless the deduction is authorized by law or by signed agreement of the worker.  

Texas workers can also file a claim with the Department of Labor, Wage & Hour Division if the claim involves violation of minimum wage or overtime violations. 

 

Sherrod Turns Down Offer of Resinstatement

To most people, your job is your life or a very significant part of your life.  Survey after survey supports that view.  Common sense tells us it must be true.  We see that in the case of Shirley Sherrod.  Fired for no good reason as part of  a huge misunderstanding.  Her employer, the US Department of Agriculture, offered a different job doing something that would appeal to her.  Today, she turned them down.  See CBS news report.  She said she could not go back "with all that has happened."  

When that trust is gone, it is hard to put it back together.  i hear from clients all the time that they do not want to go back to their employer.  Usually, they mean no way will they go back so long as "so-and-so" is still working there.  When a person is fired, they see their employer in a new light.  At first, they cannot believe "it" happened.  Some find later that they are relieved to be away from a terrible place to work.  Many more miss their former place and the relationships they used to have.  

Bobby Bowden, former coach of Florida State, knows this.  In his new book, he tells how someone to whom he had ben close essentially fired him.  "I doubt I'll have a relationship" with him any longer, he said.  See report.  Coach Bowden and TK Wetherell had been friends for decades.  A termination for the wrong reasons can change all that.  

Work Email Belongs to the Employer

Yes, emails sent from the workplace almost always belong to the employer.  That still seems to be a shock to many employees.  Look at the story of Chris Gonzalez, grandson of a well-known, former San Antonio Congressman.  See San Antonio Express-News story.  Mr. Gonzalez has reportedly been sending harassing emails to a former girlfriend.  He sent them from work.  The girlfriend's employer blocked them from one work computer.  Mr. Gonzalez works at a large district clerk office.  So, he simply used a different work computer.  Apparently, that is when the girlfriend's employer had enough and called the police.  

Mr. Gonzalez has been arrested for a crime known as online harassment.  His employer says Mr. Gonzalez works for him now, but that could change.  I bet it could......

Email Time is Probably Compensable Time

It was bound to happen sooner or later.  A lawsuit has been filed over the employer's requirement to check email after hours.  More and more employers are issuing Blackberries and their equivalent to employees with the stated or implicit understanding that the employee check email after hours.  Such a requirement runs right into the Fair Labor Standards Act, which requires that an employee be paid for time actually worked.  

The FLSA has been around since the 1930's.  The federal statute has plenty of precedent.  We know, for example, that if the employer requires attendance at meetings after hours, then the employer must pay for that time.  So, why would "email" time be any different?  

A Chicago police Sergeant has brought a class action lawsuit against his employer claiming that he was required to use his Blackberry on his own time.  Sgt. Jeff Allen is seeking overtime pay, because he was required to use his city-issued Blackberry after hours.  See report.  

Another Church Near Ground Zero

I do not understand.  I read polls saying Americans disfavor a mosque near Ground Zero and many Americans prefer not to have any mosque near their homes.  And, yet, I do understand.  If I had not spent 12 months in Iraq serving in the Army and working closely with several Iraqi, Moslem interpreters, I might understand all too well.  But, we are the sum of our experiences.  And, I did serve with some very decent, brave Iraqi, Moslem interpreters.  

I do not have a problem with having one more church, Moslem or not, near Ground Zero.  Once when I was in Iraq, the insurgents attacked and killed tens of worshipers on their way to a large Shiite mosque in Baghdad.  Some 60 people were killed.  I asked Salma, my interpreter, "so they were attacked while going to church?" I asked incredulous.  She nodded, yes.  It took me awhile to appreciate that to Moslems, a mosque is a church.   They are the same. The horror of attacking people for no greater crime than attending church is hard too fathom.  

Salma was not a devout Moslem.  But, I served with two interpreters who were very devout and who were very decent persons.  Their humility, strength, and kindness spoke to me as devout Christians. Yet, they were very Moslem.  

Salma was killed later by the same insurgents who killed many good soldiers.  Probably the same insurgents who killed her brother, a policeman, two years earlier.  Of the two devout Moslem interpreters I served with, one had to quit when the insurgents started to realize he worked for the US.  The other interpreter, I'll call him Abdul, had many, many issues with the insurgents.  Abdul tried to deal with them in "his way," but was ultimately unsuccessful.  He eventually had to flee Iraq.  

Abdul was special.  Once, the Iraqi lady who cleaned our offices came to work with another black eye.  This was not the first time.  Her husband was beating her.  My predecessor officers and NCO's respected her a great deal.  So, they asked Abdul to see if he could stop this.  The story I heard later when I got to country was that Abdul, usually a very kindly sort, hit the husband and told him if his wife came to work again with a black eye, Abdul would kill him. 

This was the same Abdul who would bow slightly whenever greeting someone and say "how are you sir" with the biggest smile.  Abdul was from good family.  He could have been doing anything, but he chose to risk his life and that of his family to better his country.  He never sought favor.  He never complained about the rare instance of rude, disrespectful treatment he received from one or two ignorant soldiers.  Whenever we asked, he would buy us good rugs at good prices in Baghdad.  

To me, like most Americans, I see Ground Zero as sacred ground, much like the Gettysburg battlefield or anywhere where Americans have perished in great numbers simply because they were Americans. 

So, yes, now, after my year in Iraq, I find it strange that some folks get worked up over having one more church, Moslem or otherwise, near Ground Zero.  Because, in my mind, I see people like Abdul worshipping at this or at some other mosque.  And, to me, that would be a good thing. 

Dr. Laura's Advice to Self: Quit

There was a time when I enjoyed Dr. Laura and her "tough love" advice.  On my long drives to Reserve duty, there was often not much else available on the radio.  Her no-nonsense style appealed to me for a time.  Now, she is quitting after 30 years, apparently due to her use of the n- word.  See report.  I heard a brief snippet of her advice to a woman complaining about being called a n- by certain white relatives. Dr. Laura used the word over and over trying to make the point that if the word is used on HBO and other places, then it cannot be too offensive.  

Say what?  That is the point of the shows, HBO and others, that use the epithet, to demonstrate the offensive capabilities of the word.  Some people just do not get it.  She has apologized.  But, I have to say, what is so hard about understanding that the n- word is very, very offensive in certain situations.  Why is this such a revelation?

No Fury Like a Former Employee Scorned

So, you get angry with your employer.  They fire you.  You want to get back at them for what "they" did to you.  Most people start thinking lawsuit.  Not Edward Harrington.  He decided to start a blog complaining about his former employer, Levinson Axelrod, a prominent New Jersey law firm.  He started a blog called "Levinson Axelrod Really Sucks."  He celebrated their losses.  He pointed barbed comments at the mustache of a partner.  He encouraged others to file ethical complaints against the firm. 

The firm eventually sued the errant former associate based on the Lanham Act and Anti-Cyber Squatting Consumer Protection Act.  The suit apparently faced a difficult challenge.  To win, the firm would have to show that Mr. Heyburn was profiting somehow from his blog.  But, Mr. Harrington denied any profits.  So, the parties reached a settlement in which the young blogger agreed to take down his blog.  See report.  

Older Worker Benefit Protection Act Meets a Need

The Older Workers' Benefit Protection Act (OWBPA) was passed in 1990 as an amendment to the Age Discrimination in Employment Act.  The OWBPA provides that for an older worker to sign a binding waiver of claims, the employer must include a provision that the worker has 21 days in which to sign the waiver and 7 days after signing in which the worker can reconsider his signature. The waiver must be legible and specifically refer to waiving any ADEA rights.  See EEOC Fact Paper.  The employer must tell the potential age claimant that he has a right to speak with a lawyer before signing the waiver. 

What if the worker accepts severance pay at the time he signs the release?  Must the worker return the severance pay in order to rescind his signature?  Not under the terms of Oubre v. Entergy Operations, 522 US 422 (1998).  If the release does not comply with the OWBPA, then the worker need not return or "tender back" the severance pay in order to still file suit for age discrimination.  See EEOC Guidance, Note 13.  

Passage of the OWBPA was based in part on the recognition that when an older worker is terminated, they may be leaving employment with no resources on which to live.  That is why Oubre provides they need not return a severance payment related to the waiver.  Most workers who are terminated leave with little resources.  But, Oubre only applies to age claims.  If you sign a waiver releasing several claims, such as age claims, ethnic origin claims and race claims, then you could possibly rescind only the signature related to the age claim.  Your signature remains valid in regard to the race and ethnic origin claims, whether you return the severance pay or not.  

Some plaintiffs have tried to argue that when they signed a waiver releasing multiple claims, then the waiver as a whole is not valid because it failed to meet the OWBPA requirements.  Wrong,  The failure to meet the requirements of the OWBPA only applies to any potential age claim.  Your race claim would remain barred or waived.  The waiver is effective in regard to other non-age related claims.  Same waiver, same provisions.  But, age claimants get a break, while others do not.  

The reality is that most people who are fired are extremely upset at the time.  Even if they do not shed tears, they are are still too disturbed to think clearly.  They do sometimes sign things they should not and accept payments they should not accept.  Age claimants can undo such agreements. The others cannot. 

Judge Keller's Appeal Rejected

Judge Keller's appeal fails with no comment from the court.  See report.  The Texas Supreme Court rejected Judge Keller's appeal.  See prior post.  Keller appealed the Commission's public warning, arguing the Commission was authorized to sanction her or not sanction her.  Judge Keller argued in her appeal that issuing a public warning was not available to the Commission. 

If that is all they had, it is not surprising the Supremes turned her down.  Implicit in the authority to sanction a person is the authority to simply warn them instead.  Judge Keller may have been desperate for some basis for an appeal.....

Nurses Settle Claims After Reporting Doctor's Improper Treatment

Two northwest Texas nurses were fired after they reported improper medical treatment by a doctor at the hospital where the two worked.  They reported the improprieties to the Texas Medical Board, which agency oversees doctors.  The two nurses were later charged with felonies by the local prosecutor, reflecting local support for the doctor. One nurse was acquitted while charges against the second nurse were later dropped.  

Their situation garnered a lot of attention by whistle blower groups around the country. The nurses initially had sent in their complaint anonymously.  The doctor complained to his friend, the Sheriff.  The Sheriff discovered these two nurses, Anne Mitchell and Vickilyn Galle, who had submitted the complaint.  

The nurses later filed suit under the state whistle blowing statute.  And, now they have settled with the hospital, their former employer.  See NY Times report.  It was unprecedented, said some, that they would be prosecuted for making the sort of report they felt required to make.  They resolved their claims against Winkler County, Texas for $750,000.  

The doctor was reportedly committing errors in treatment and simple errors of judgment in 2008 and 2009.  He prescribed olive oil for a patient who seemed resistant to anti-bacterial medicine, failed to diagnose appendicitis, accidentally sutured a rubber scissor to a finger tip, and attempted to sell a nutrition supplements to various patients. See report.   It is difficult to recruit doctors for some rural areas of Texas.  Dr. Arafiles still works at the hospital in Kermit, Texas, but is awaiting hearing on charges by the state medical board. 

In April, 2010, state Department of Health Services later fined the hospital for failing to supervise the doctor and for firing the two nurses.  

The two former nursing administrators remain unemployed. 

Texas has several whistle blowing statutes.  The one most commonly used applies to any government worker.  Govt Code Sec. 554 applies to any state or local government worker.  State whistle blowing laws only apply to state or local government employees.  Texas has no whistle blowing statutes for employees at private businesses. 

TWC Official in Charge of Appeals Gives Advice to Employers

The TWC official in charge of appeals of unemployment claims gave advice to employers on how to "game" the system.  Jonathan Babiak told employers at a conference in June that they should give employees the opportunity to quit instead of being fired.  Some employees, he explained, would think they could not apply for benefits if the records showed they quit.  See San Antonio Express-News report.    He was speaking at a conference sponsored by the Chairman of TWC, Tom Pauken.   Mr. Pauken said such advice is not proper.  Employers should not attempt to "game" the system, said Mr. Pauken.  As head of appellate services, Mr. Babiak is supposed to remain unbiased. 

Mr. Babiak has been re-assigned with no loss in pay.  Yea, I bet......

I just got off the phone yesterday with a woman crying because we lost her hearing.  I tried to explain to her that in general, TWC hearings favor employers.  Employees can win some, but close cases usually go to the employer.  

San Antonio Soldier Killed in Afghanistan

A San Antonio soldier was killed in Afghanistan.  Nineteen years old, PFC John  Andrade was killed by an IED.  See San Antonio Express-News report.  He apparently survived the explosion and even called home.  He told his family that he was fine except for bumps and bruises.  A few days later, the family was notified that he had died.  The Defense Department has not yet released details concerning the death.  PFC Andrade graduated from Holmes High School. 

I have mentioned before the remarkable bravery of our young men and women who continue to volunteer in a time of war.  IED's can be insidious.  The concussive effects are tremendous, even when soldiers survive the blast itself.  

Lawyers Behaving Badly at Depositions

Another example of lawyers behaving badly at depositions.  A Florida lawyer, Robert J. Ratiner was sanctioned for his conduct at a deposition.  See ABA Journal report.  His latest sanction is that he cannot attend a deposition alone for the next two years unless the deposition is video taped.  As reminder, depositions is the event in which lawyers for both sides to a civil lawsuit can question a particular witness.  There is no judge.  Only the lawyers, the parties to the lawsuit, one witness and a court reporter attend.  The court reporter records the testimony.  Often, egos, tempers and emotions are also present.  

At his latest infraction in 2007, Mr. Ratiner lost control when the opposing counsel attempted to put an exhibit sticker on Mr. Ratiner's laptop.  The opposing counsel was apparently trying to turn Mr. Ratiner's laptop into a deposition exhibit.  Mr. Ratiner briefly touched the opposing counsel's hand and then attempted to run around the table toward the opposing counsel.   According to a referree who investigated the incident, Mr. Ratiner then tore up the exhibit sticker (typically about 2" by 2") tossed the little pieces toward the opposing counsel.  He leaned in toward the opposing counsel and berated him.  Mr. Ratiner's own consultant told him to take a Xanax.  The court reporter exclaimed that she could not "work like this."  

The Florida Supreme Court described Mr. Ratiner's conduct as an embarrassment to all members of the Florida bar.   As I have mentioned before, extreme conduct like this is very rare in my experience.  But, lawyers do behave badly at depositions.  Not too long ago, I had to fuss a bit at one lawyer for attempting to provoke my client unnecessarily.  There is no jury and no judge at a deposition.  The things that force us to behave are not present.  

Like doctors, we lawyers also say "first do no harm" to your client.  It does sound like Mr. Ratiner overlooked this maxim and did substantial harm to his client's case with his outburst. 

Hewlitt Packard CEO Resigns Amidst Sex Harassment Probe

 The Hewlitt Packard CEO, Mark Hurd, resigns in the middle of a sex harassment investigation.  The investigation found other violations of other company policies.  See report.  It turns out that his expense reports were not accurate.  Mr. Hurd admitted to integrity issues.  Yet, the sex harassment probe supposedly found no infraction by Mr. Hurd. 

All too often, folks who violate discrimination laws also violate other laws.   

Tweeting Your Way out of a Job

Tweeting your way out of a job can happen.  See report.  The Middle Eastern editor for CNN sent a brief tweet about the passing of a Lebanese cleric who was known for being anti-American.  Octavia Nasr tweeted that the cleric was "one of Hezbollah's giants I respect a lot."  The editor meant the cleric's opposition to "honor killings," a long and controversial tradition in the Middle East.  

CNN issued a statement calling the tweet an error in judgment.   Ms. Nasr deeply regretted the tweet, explaining that the commentary was too complicated for a tweet.  She was a 20 year employee of CNN. Now, she is out of a job.  

Temp Agency Uses Codewords for Minorities

 According to the ABA Bar Journal, the EEOC settled a case against a temp agency in Ohio.  The agency used code words to describe the racial background of potential employees.  "Chocolate cupcake" referred to young female African Americans.  "Hockey players" described young white males. 

The case settled for $650,000.  The case was pretty egregious, said the EEOC Field Director.  

Workplace Violence Takes 9 Lives

 Another incident of workplace violence.  This time in Connecticut.  See news report.  The shooter's family say the shooter had been harassed due to his race, African-American.  In any event, he was video taped stealing some product.  The morning of the shooting, he was going to a disciplinary hearing.  He had worked for the beer distributor for some two years driving a truck. 

Unfortunately, workplace violence happens.  OSHA has a helpful website.  OSHA refers the reader to a publication by the National Institute for Occupational Safety and Health.  NIOSH suggests various ways of identifying and reducing work stress.  There is no excuse for shooting and murder. But, many employers have weak or nonexistent tools for dealing with workplace issues.  The simple answer in an at-will state is to quit a bad job.  But, for some folks, quitting is not an option, or it is not an option, yet.  I cannot remind the reader enough that if you have a problem employee, you need to perform appropriate verbal and written counseling.  Take appropriate disciplinary action for all employees.  And, yes, listen to employees and deal with issues.  

But, as my colleague says at Connecticut Employment Law, ultimately, even when you do everything right, that is no guarantee that shootings will not occur.  See post.  

Worker Loses Appeal for Unemployment Benefits

Frequently, employees call me and tell me with breathless excitement that the employer is violating some law, the caller knows it and then they pause.  They seem to expect me to say, "well, then, ignore them" or "well, ok, then tell them to jump in the lake."  ....  No, we cannot say those things. 

I sympathize with the caller's plight.  But, unless you have a court order in hand, or unless they are asking you to perform an illegal act, you have to do what the employer says.  Period.  

We see this in a case described by a pro-employer blog, Texas Employment Law Update by Russ Cawyer: Uranga v. Nationwide.  This is a decision rendered by the state court of appeals in El Paso. The employee worked for Nationwide from 2003 to 2005.  The employee claimed he was not paid overtime; he believed the employer was acting in bad faith to build a record to fire him; and that he was about to be paid off.  So, he quit.  Meanwhile, the employer had been trying to meet with the agent to discuss perceived performance issues.  On three occasions, the employee failed to appear for these meetings. The employer then came to understand from others that the employee had stopped coming to the office for two months and had removed the computer equipment.  Mr. Uranga apparently quit.  He applied for unemployment benefits.  But, Nationwide argued that the employee had abandoned his job.  

The El Paso court found in favor of the employer.  The supervisor sent a letter to Mr. Uranga saying he had abandoned his job.  There is no mention in the report of Mr. Uranga formally quitting.  There is no indication that he objected to the letter from his supervisor.  Yes, even when you believe you are being treated unfairly or unlawfully, you, as an employee, need to tell your employer that you are quitting.  

If an employee quits for good reason, s/he might receive unemployment benefits.  But, here, Mr. Uranga could not even show that he notified the employer that he had quit.  Apparently, there was no letter, no memo, no note.  And, he missed a few meetings with his supervisor.   These are all good reasons for termination.  If he felt he was owed overtime pay, then he should have filed a complaint with Department of Labor or Texas Workforce Commission.  You cannot just ignore a boss you believe is violating the law or mistreating you.