August 2010

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. 

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…..

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. 


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.  

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……

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.  

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. 

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?

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.