Mark Miller to Present How to Properly Conduct an Internal Investigation

On April 16, 2015, Bowers Harrison attorney, Mark E. Miller, will present on How to Properly Conduct an Internal Investigation. The seminar is sponsored by the Evansville-Area Human Resource Association and will provide employers with information on relevant issues and practical tips on how to investigate complaints of discrimination, harassment, and requests for accommodation.


For registration information, please contact Mark E. Miller or visit the Evansville-Area Human Resource Association website.

Does An Employer Have to Give Light-Duty Jobs To A Disabled Worker As A Reasonable Accommodation?

On June 27, 2014 a Federal District Court Judge, Catherine C. Eagles, in Greensboro North Carolina, granted summary judgment for the employer in the case of EEOC v Womble Carlyle Sandridge & Rice, LLP (M.D.N.C, June 26, 2014) holding that the employer did not have to create a light-duty job as a reasonable accommodation in an Americans With Disabilities Act (ADA) case. Thereby, the judge rejected the Equal Employment Opportunity Commission’s (EEOC) claims.


Ms. Jennings was an office support services assistant (“SSA) for the law firm of Womble Carlyle located in Winston-Salem, North Carolina.  She was diagnosed with breast cancer during her employment. Her job description required her to lift or move items weighing up to seventy-five (75) pounds.  After a number of years, in 2008, Ms. Jennings developed a cancer-related condition that impaired her circulatory and immune systems.  As a result she was unable to lift more than ten (10) pounds at first.  Later a medical restriction prohibited her from lifting more than twenty (20) pounds.  However her job required her, as a condition of employment, to lift up to at least seventy-five (75) pounds.

After a number of layoffs, the SSA staff was light, requiring the remaining employees who were SSA’s to work independently.  For a time, Ms. Jennings was able to perform some of her duties, while avoiding the really heavy lifting and by modifying her lifting techniques. However, she could not perform many of her SSA job duties, as she simply could not work alone. The problem was that many of her job duties required the lifting of heavy files.

In February, 2011, Womble Carlyle placed Ms. Jennings on medical leave, as “she could not lift seventy-five pounds.”  After six months with no improvement, the law firm terminated Jennings’ employment.

The EEOC brought a lawsuit for Ms. Jennings claiming that the law firm failed to accommodate her disability in violation of the ADA.

Summary Judgment Decision

Womble, Carlyle moved for summary judgment asking the Court to dismiss the case on the basis that the employee could not perform the essential functions of her job without a reasonable accommodation and that she was not a qualified individual under the ADA..  The Court agreed.

The Court reached its decision concerning whether Ms. Jennings was a “qualified individual” under the ADA by engaging in a two-part analysis:

1. Was lifting twenty (20) pounds an essential job function?

2. Can the employer reasonably accommodate this employee with regard to her lifting restrictions?

First, the Court found that lifting more than twenty (20) pounds was, in fact, an essential function of the SSA job based, in part, on the job description.

Second, the Court found that certain accommodations for Ms. Jennings would substantially modify and alter the job function to the extent that it was not reasonable for the employer as it would fundamentally change the SSA position. Specifically, the EEOC’s proposed solutions were contrary to the well-established principle that the ADA does not require an employer to either create a “modified light duty position” or “relocate essential functions” to another employee. The Court, therefore, held that the employer was not required to make such accommodations by modifying her job to create a light-duty job.

Editorial Comment:   This Court decision emphasizes the importance of creating job descriptions that are accurate and detailed in setting forth the essential functions of a job, especially in the areas of lifting, standing, every day attendance, shifts and other essential job functions needed to perform the job.

Also, in cases involving disabilities, an employer must be careful to have medical restrictions documented, while engaging in an “interactive process” to show that it determined if there were any reasonable, legally necessary accommodations that it did not consider.

Sixth Circuit Issues Decision That Telecommuting May Be A “Reasonable Accommodation”

In a controversial decision from the Sixth Circuit Court of Appeals in EEOC v Ford Motor Co. (No. 12-2484)(6th Cir. Mich.), the Court ruled that telecommuting may constitute a reasonable accommodation under the Americans With Disabilities Act (ADA), when an employee can physically and effectively perform the essential functions of her job from home.


The employee, Jane Harris (Harris), worked at Ford Motor Co. (Ford) for several years as a resale account representative (buyer).  Her job involved serving as an intermediary between the steel suppliers and the parts suppliers for Ford. Harris had, for the most part, received good performance reviews until her physical condition (irritable bowel syndrome) became a disability for her, which led to unscheduled absences and ultimately affected her job performance. Harris then requested telecommuting as an accommodation, but Ford rejected this as a reasonable accommodation, because her job required, in a number of instances, face-to-face interaction with her other team members, suppliers and others when problems arose.

Ford engaged in the interactive process and suggested moving her office closer to the restroom and other alternatives to accommodate her disability. When these alternatives were rejected by Harris, Ford denied her request and subsequently placed her on a 30-day performance improvement plan. At the end of this 30 day period, when nothing improved, Ford terminated her employment. Harris filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) during this process.

The EEOC later filed a lawsuit against Ford in Federal District Court alleging a failure to accommodate and retaliation for filing the EEOC charge. The District Court granted Ford summary judgment on both claims, finding that Harris was not a qualified individual under the ADA, because of her excessive absenteeism. The lower court also stated, in its decision, that it declined to “second guess an employer’s business judgment regarding essential functions of a job” and found that telecommuting was not a reasonable accommodation for Harris’s job.

Sixth Circuit Decision

Harris appealed to the Sixth Circuit Court of Appeals. In reviewing the lower court’s ruling, the Sixth Circuit panel pointed to advances in technology and communications and compared the “brick and mortar” workplace of the past with today’s workplace and held that:

The law “must respond to the advances in technology in the employment context…and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.”

The Court noted that because of such advances, “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.”

Editorial Comment:  The Sixth Circuit decision in this case is very troubling because the Court is second guessing Ford’s business judgment as to what it claims to be an essential function of the job without the requisite business judgment to do so. Ford, in this case, did everything that it was required to do under the law and was still found deficient in its business judgment. The Sixth Circuit did remand the alleged retaliation count to the District Court, as the evidence created an issue of material fact.

Courts are not super personnel departments. To make such business judgments, with this decision, flies in the face of long-standing precedents, in that many circuits have honored the business judgment principle.

The Sixth Circuit covers Michigan, Ohio and Kentucky. Employers in these states should consider telecommuting when an employee asks this as a reasonable accommodation for a disability. To determine the feasibility of this telecommuting arrangement, ask yourself, “Is an employee’s physical presence a necessity to perform all of the essential job functions?” Also, review all communication options when making a decision on telecommuting, especially in those cases, where you have allowed telecommuting by your employees in the past on a part-time basis.

If you have questions on this, or any other labor and employment law issue, please contact the attorneys at Bowers Harrison.

EEOC and FTC Issue Joint Publication On Background Checks

On March 10, 2014, the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) co-produced a joint publication on background checks, in accordance with their joint responsibilities, to enforce the notice and fair play provisions of the Fair Credit Reporting Act (FCRA) and Title VII of the Civil Rights Act, as amended. The new documents are:  The EEOC’s publication entitled “Background Checks: What Employers Need to Know.”  The FTC’s publication is titled “Background Checks:  What Job Applicants and Employees Need to Know.”  Both documents are available on the respective agency websites.

Although there is very little information that has not been disseminated before these publications were issued, both publications give a good summary or guidelines that emphasize the important points and concepts to consider, when employers conduct background checks in employment situations such as hiring, retention, promotion and reassignment.

Key Points

Some of the more important takeaways are as follows:

1.     No matter how background information is obtained, an employer that uses this information to make a change in employment must comply with the FTC’s enforcement of the Fair Credit Reporting Act (FCRA), Title VII of the Civil Rights Act, as amended, and all applicable state and local laws.

2.     Employers are allowed to ask job applicants and employees for a wide range of individual information, if its job related. It is not illegal to require a background check on an applicant or employee.

3.     To comply with the FCRA, before going through a background check, an employer must do the following:

A.   Advise the employee or applicant that it may use the information for decisions about his or her employment.  This notice must be in writing; it must be singled out in a stand-alone format; and it cannot be in the employment application.  The employer can include a simple notice or additional information in the notice; such as, a general description of the nature of the consumer report to be accessed.

B.   If the employer is asking a company to provide an investigative report (e.g., a report covering an applicant or employee concerning his/her character, general reputation and lifestyle), then the employer must inform the applicant of his/her right to a description of the nature and scope of the

C.   The employer must secure the applicant’s or employee’s written permission to do the background check.  This can be part of a general notice used by the employer, which can be secured with the report.

D.  The employer must certify to the company, from which it is obtaining the report, that the employer has notified the applicant/employee and has received his or her permission to secure such a report, complied with all FCRA requirements, and will not disseminate or discriminate against the applicant or employee or otherwise misuse the information, in violation of federal or state law.

4.     When making an adverse employment decision against a job applicant or employee, based on background information (such as a credit report) from a company in the business of compiling background information, the FCRA requires the employer to give the applicant or employee the following:

A.   A notice that includes a copy of the consumer report relied upon to make the adverse employment decisions;

B.   A copy of “Summary of your Rights under the Fair Credit Reporting Act,” that the employer should have received from the company providing the report; and

C.   Notice in advance…so that the applicant or employee has the opportunity to review the report and explain any negative information.

5.     After taking an adverse action against the applicant or employee, the employer must, under the FCRA, tell the applicant or employee (orally, electronically or in writing) all of the following:

A.   That he or she was rejected because of information in the report;

B.   The name, address and telephone number of the company that sold the report;

C.   That the company selling the report did not make the hiring decision and cannot give specific reasons for the decision; and

D.    That he/she has a right to dispute the report’s accuracy or completeness, and to get an additional free report from the reporting company within 60 days.

6.     Keep in mind that an employer cannot discriminate in using background information on the basis of race, national origin, color, sex, religion, disability, genetic information (including family medical history), age (40 or over) or other protected status.

7.     There are limitations as to an employer’s lawful inquiry.  Employers are not allowed to ask for medical information until a job is offered.  Only in very limited circumstances may an employer ask a job applicant or employee for genetic information, including  family medical history.  In fact, in those rare circumstances when an employer does need to ask for genetic information, the employer should not use it to make employment decisions.

8.     Beware that improperly screening applicants, on the basis of background information (such as arrest records or credit checks), may constitute “disparate treatment” or “disparate impact.”  For example, as far as the EEOC is concerned, it would be unlawful “disparate impact” if the employer’s policy or practices:

A.   Excludes people with certain criminal records to the disadvantage of individuals of a certain race, national origin or other protected characteristic; but

B.   Does not accurately predict who will be responsible, reliable or safe as an employee; i.e., such screening for a particular trait or characteristic must be job-related and consistent with business necessity.

9.      The most important and last point is that any applicant or employee must have a chance to correct mistakes before the final employment decision is made on the basis of the background information. The employee must be able to ask the background reporting company to fix the mistake and send a copy of the corrected report, if this is the case, to the employer.

Major Points From The EEOC’s New Document

In its new publication, the EEOC specifically made the following points:

1.      In all cases make sure you are treating everyone equally.

2.      Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired or not and other employment records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later.  The EEOC extends this requirement to two years for educational institutions and for state and local governments.

        • The Department of Labor (DOL) also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.00.
        • If the applicant or employee files a charge of discrimination, the employer must maintain the records until the case is concluded.

If you have questions on this, or any other labor and employment law issue, please contact the attorneys at Bowers Harrison.


EEOC Issues New Guidance For Religious Dress In The Workplace

On March 6, 2014, the EEOC released additional guidance on religious dress and grooming in the workplace under Title VII of the Civil Rights Act of 1964, as amended.  Under this supplemental guidance, employers are again reminded that in many circumstances, Title VII requires employers to make accommodations to their typical workplace policies to allow applicants and employees to observe their religious dress and religious grooming practices.  Such accommodations must be made unless accommodating an employee’s request would cause the employer an undue hardship; that is, “more than de minims” cost or burden on the employer.

The EEOC guidance specifically covers some examples for the following questions:

    • What if an employer questions whether the applicant’s or employee’s asserted religious practice is sincerely held?
    • May an employer automatically refuse to accommodate an applicant or an employee’s religious garb or grooming practice, if it would violate the employer’s policy or preference regarding how employees should look?
    • May an employer assign an employee to a non-customer contact position, because of customer preference?
    • May an employer bar an employee’s religious dress or grooming practice, based on workplace safety, security or health concerns?

The guidance provides informational examples with discussion of the current law, as well as EEOC advice for employers.  A couple of important points are:

  • Keep in mind that Title VII defines religion very broadly to include not only traditional, organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect, or may seem illogical or unreasonable to others.
  • Title VII only applies to dress and grooming practices that are religious for an applicant or employee, even if other people engage in the same practice for non-religious reasons (such as personal preference or fashion).
  • If an employer’s dress and grooming policy conflicts with an employee’s religious beliefs or practices, the employer must make an exception to allow the religious practice, unless making an exception would constitute an undue hardship on the employer’s business.
  • To comply with Title VII, consider requests to wear religious headgear.

The guidance does give advice from the EEOC for compliance with religious dress or grooming custom as follows:

  • Title VII provides that customer preferences or co-workers’ preferences are not valid concerns to refuse a religious accommodation request nor are they a defense to a religious discrimination claim.
  • Title VII requires employers to accommodate an employee’s religious dress or  grooming custom, even if it is inconsistent with the employer’s dress code or appearance guidelines, unless undue hardship can be proven (which in most cases, will not be a defense).
  • Employers may not assign an employee to a non-customer contact position, because the employer fears that its customers will feel uncomfortable or would not accept the religious dress.
  • An applicant or employee is not required to use any specific request or words to make an accommodation request.  For example, if an employee tells his employer that he wears a beard for religious reasons, that alone is sufficient to trigger the accommodation request.
  • In most situations an employer cannot rely on its marketing image to deny an accommodation relating to religious dress or religious grooming practices.
  • Employers may decline accommodation for an employee’s religious dress or grooming practice based on workplace safety, security or health reasons, but only if the requested accommodation poses an undue hardship to the business operation.
  • It is unlawful to retaliate against any employee who has made a religious accommodation request, as such request is protected activity under Title VII.

Editorial Comment:  Employers should review these guidelines with regard to their workplace policies on dress and grooming, as the guidelines provide practical examples to understand the EEOC’s position and enforcement against religious discrimination. Remember that while these guidelines are not actual law and regulations, they do provide the EEOC’s current position on what the EEOC will be looking for in a religious discrimination case, when it involves religious dress and grooming requests in the workplace.

Keep in mind that these guidelines are contrary to the Tenth Circuit’s decision in EEOC v Abercrombie & Fitch (No. 11-4110, 10th Cir. Oct. 1, 2013), that an employer will not be liable for failure to accommodate a particular religious practice, unless the applicant or employee tells the employer that he or she adheres to a particular practice or custom for religious reasons and that he or she needs an accommodation for that practice. Specifically the Tenth Circuit in Abercrombie determined that the employer was entitled to summary judgment because:

“There is a genuine dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that she wore a ‘hijab’ for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy.”  However, the EEOC is expected to petition the U.S. Supreme Court for certiorari in the Abercrombie case.

If you have questions on this, or any other labor and employment law issue, please contact the attorneys at Bowers Harrison.

EEOC Settled Its First Systemic Discrimination Case Under Genetic Information Nondiscrimination Act

The U.S. Equal Employment Opportunity Commission (EEOC) settled its first systemic discrimination case brought under the Genetic Information Nondiscrimination Act of 2008 (GINA).

In EEOC v Founders Pavilion, Inc. (Founders Pavilion-Employer)No. 13-cv-6250 (W.D.N.Y. Jan. 9, 2014), the EEOC brought a discrimination lawsuit against Founders Pavilion, a former Corning, New York nursing and rehabilitation center, claiming that the employer violated GINA by requesting family medical history as a part of its post-offer, pre-employment medical exams of its applicants.

GINA prevents employers from requesting genetic information or making employment decisions based upon such information. GINA treats family medical history as “genetic information,” making it unlawful, absent an exception, for an employer to request such information.

This lawsuit was the third lawsuit, since the enactment of GINA, and the first one that was systemic.

The case was settled on the terms of Founders Pavilion agreeing to a five (5) year consent decree and having to pay a total of $370,000.00 into a fund for distribution to 138 individuals and five (5) individuals who were asked for their family history (genetic information). The five (5) individuals will receive the majority of the settlement fund, as Founders Pavilion allegedly fired these parties or denied them employment, also in violation of the Americans With Disabilities Act (ADA) or Title VII.

Editorial Comment:

GINA, in the text of its statutory language, expressly prohibits requesting family medical history. Therefore, employers are advised to be careful in their hiring process; making sure required medical exams do not include asking routine questions about family medical history. Simply, GINA prohibits family history questions as a part of employment medical exams during the post-offer pre-employment process.

If you have questions on this, or any other labor and employment law issue, please contact the attorneys at Bowers Harrison.

UPS Separation Policy After12 Months Leave Challenged By The EEOC

The Equal Employment Opportunity Commission (EEOC) has filed suit against United Parcel Services, Inc. (UPS) in a class action claiming that UPS violated the Americans With Disabilities Act (ADA) by maintaining a leave policy that requires employees to “be administratively separated” from employment after 12 months on medical leave. This policy was maintained by UPS as an absolute ban without UPS making an individualized assessment of the employee’s physical or mental condition, or whether he/she could do any available work with or without any reasonable accommodation. See EEOC v. United Parcel Service, Inc.; N.D. Ill. No. 09CS291, February 11, 2014.

The ADA, as amended, restricts any employer from “using qualification standards, employment tests or other selection criteria” that would prohibit disabled individuals with disabilities, unless the criteria test or selection criteria are “job-related for the position in question and consistent with necessity.”

Facts Of This Case

As an example, one employee, who worked for UPS since 1990, was terminated in March 2007, soon after returning from a 12 month medical leave of absence. To work, she required a cane to walk and requested a reasonable accommodation, including a hand cart. However, UPS would not provide her with any accommodations. Soon after returning to work, the employee injured herself again and needed additional time off to receive therapy. Instead of granting the employee’s request for additional medical leave, UPS terminated her pursuant to its 12 month leave policy.

Court Decision

The Court first noted that the UPS 100% leave policy, which amounted to a 100% healed requirement, “acts as a health requirement and presents such a ‘qualification standard prohibited by [the ADA].’” The Court found that in order for UPS employees to return to work from their medical leave, they had to meet an absolute requirement without even considering whether any accommodation was needed.

The Seventh Court of Appeals noted in Steffen v Donahoe, 680 F.3d 738, 748 (7th Cir. 2012) that an absolute ban, without making any “individual assessment,” was an ADA violation.

UPS argued that, “The ability to regularly attend work and not miss multiple months is an essential job function and not a qualification standard, employment test or other selection criteria.” UPS also argued that the EEOC claims failed without an actionable qualification standard. However, the Court found that 29 C.F.R §1630.20(g) did, in fact, apply.

The Court then proceeded to quote that an “essential function” is defined as “the fundamental job duties of the employment position, which the individual with a disability holds or desires.” Although UPS contended that the Seventh Circuit found regular job attendance to be an essential job requirement, citing EEOC v. Yellow Freight Systems, Inc., 253 F.3d. 943, 948-49 (7th Cir. 2011), the EEOC’s § 12112(b)(6) claim was not premised on attendance but rather on UPS’s imposition of a 100 % healed requirement for those seeking to work. “Framed as such, the twelve month policy can be considered a qualification standard – a medical requirement that an individual must meet in order to maintain his or her position with UPS – and not an essential job function.” (See Street v. Ingall’s Memorial Hospital, No. 06C2963, [2008 W2162761] (N.D. Ill. Jan. 17, 2008) (discussing 100% healed policy in connection with the ADA’s prohibition against the use of qualification standards to screen out individuals with disabilities).

The Court held that UPS’s 100% healed policy falls within the definition of a “qualification standard” and that the EEOC has alleged that the policy applies to qualified individuals with disabilities. Thus, the Court denied UPS’s Motion to Dismiss and found that the EEOC may proceed on its § 12112(b)(6) claim.

Editorial Comment

Indefinite leave in most cases does not constitute a reasonable accommodation. [See e.g., Bernhard v Brow & Brow of Lehigh Valley, Inc. 720 F Supp 2d 694, 701 (E.D. PA 2010); Johnson v. Community College of Allegheny City, 5661 Supp. 2d 405, 453-54 (W.D. PA 2008)].

The EEOC’s suit against UPS shows that an employer’s absolute termination policy on all medical leaves at the end of one year, without engaging in an individualized assessment or potentially granting a severely limited employee such additional leave, without the employer arguing that granting the request would cause an “undue hardship” is usually an automatic violation of the ADA under the EEOC’s enforcement scheme of the ADA.

The general requirements surrounding granting leave are set forth in the EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, No. 915.002(10/22/02).

Therefore, after granting a medical leave that does not present an undue hardship, the employee should be returned to the same job. If there is an undue hardship, the employer must then examine reinstatement to an equivalent position unless this also creates an undue hardship. If so, then reinstatement to a lesser position should be explored.

If there is a reasonable accommodation, other than leave, that is reasonable, possible and available; such as, a temporary reassignment to an available position, give this option due consideration. However, the accommodation cannot interfere with the employee’s need to address his/her medical needs. Ask yourself if the requested accommodation is going to cause significant difficulty or expense to the employer. This assessment should include the following considerations:

    1. The nature and cost of the accommodation;
    2. The overall financial resources of the employer;
    3. The size and number of the employer’s facilities;
    4. The type of operation of the employer, including the function and structure of the workforce; and
    5. The impact of the accommodation on the operation of the facility.

The teaching of the UPS case simply shows that an employee’s accommodation request requires an in-depth analysis; i.e., a complete individualized assessment in each case based on all the facts available and what the employee is asking for as an accommodation.

Is what the employee seeking as an accommodation reasonable? This individual assessment is really the crux of the ADA requirements and this is where UPS’s absolute policy of separation after 12 months of leave was legally deficient in the eyes of the EEOC. The focus on returning an individual to work after a medical leave under the ADA should consistently involve an interactive process and determination of whether a reasonable accommodation will assist in returning that person to his or her job. Focusing just on a particular time limitation for absence may create unintended liability under the ADA’s “qualification standard” requirements.

If you have questions on this, or any other labor and employment law issue, please contact the attorneys at Bowers Harrison.

Recent Interpretation of ADAAA’s Recent Expanded Definition of “Disability”

Congress enacted the Americans With Disabilities Amendments Act of 2008 (ADAAA) on September 17, 2008. One of the main purposes of the amendments was to specify the “broad scope of protection to be available” under the ADAAA, which had been watered down as a result of several U.S. Supreme Court decisions that had seemingly set “inappropriately high levels of limitation necessary to obtain coverage under the ADA.”

Since the ADAAA’s enactment, some courts have interpreted various aspects of the expanded scope of coverage under the ADAAA.

One of the specific recent Court decisions analyzing whether an individual was “disabled” under the new amendments was decided earlier this year when the Fourth Circuit Court of Appeals issued its decision in Summers v. Altarum Institute Corporation, Case no. 13-1645; (4th Cir. 2014).


In July 2011, Summers began working as a senior analyst for the Altarum Institute (Altarum), a government contractor with an office in Alexandria, Virginia. Summer’s job required him to travel to the Maryland offices of Altarum’s client, the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (DCoE). At DCoE, Summers conducted statistical research, wrote reports, and made presentations. Altarum’s policy authorized employees to work remotely, if the client approved. The client, DCoE, preferred contractors to work on-site during business hours, but permitted them to work remotely from home when “putting in extra time on a project.”

On October 17, 2011, Summers fell and injured himself while awaiting a commuter train on his way to DCoE. Paramedics took Summers to the hospital, where doctors determined that he had sustained serious injury. Summers fractured his left leg and tore the meniscus tendon in his left knee. He also fractured his right ankle and ruptured the quadriceps-patellar tendon in the right leg. Repairing the left-leg fracture required surgery to fit a metal plate, screws and bone into his tibia. His right quadriceps required another surgery to drill a hole in the patella and refasten his tendons to the knee.

Doctors forbade Summers from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Without surgery, bed rest, pain medication and physical therapy, Summers alleged that he would “likely” be able to walk in a year after the accident.

While hospitalized, Summers contacted an Altarum human-resource representative about short-term disability benefits and working from home as he recovered. The Altarum representative agreed to discuss “accommodations that would allow Summers to return to work,” but suggested that Summers “take short-term disability and focus on getting well again.”

Summers sent e-mails to his supervisors at Altarum and DCoE seeking advice about how to return to work. He suggested a plan in which he would “take short-term disability for a few weeks, then start working remotely, part-time, and then increase his hours gradually until he was full time again.”

Altarum’s insurance provider granted Summers short-term disability benefits. But Altarum never followed up on Summer’s request to discuss how he might successfully return to work. The company did not suggest any alternative reasonable accommodation or engage in any interactive process with Summers. Nor did Altarum tell Summers that there were “any problems with his plan for a graduated return to work.” Instead, on November 30, 2011, Altarum simply informed Summers “that Altarum was terminating [him] effective December 1, 2011, in order to place another analyst in his role at DCoE.”

Summers, in September 2012, filed a complaint in the Eastern District of Virginia alleging two claims under the ADAAA. The first count alleged that Altarum discriminated against him by wrongfully discharging him on account of his disability. The second claim Summers asserted was that Altarum failed to accommodate his disability.

After lower court proceedings resulting in a second amended complaint, the lower court dismissed with prejudice the wrongful-discharge claim on the grounds that Summers failed to allege that he was disabled. The lower court reasoned that a “temporary condition, even up to a year, does not fall within the purview of the Act” and so “the defendant is not disabled.” The lower court further advised that Summers was not disabled, because he could have worked with the assistance of a wheelchair.

Second, the lower court dismissed Summers’ failure-to-accommodate claim on the grounds that he had not requested a reasonable accommodation. The court determined that an employee bears the burden of requesting a reasonable accommodation, and that Summers’ proposal to work temporarily from home was unreasonable “because it sought to eliminate a significant function of the job.” The lower court found that such an accommodation request was not reasonable.

Fourth Circuit Decision

The Fourth Circuit Court started out by noting that the ADA definition of “disability” was broadened by Congress, when it enacted the ADA Amendments Act of 2008 ADAAA.

The Court then cited the U.S. Supreme Court’s decision in Toyota Motor Mfg., Kentucky, Inc. v Williams, 534 U.S. 184, 199 (2002), where Congress sought to override in the “Amended Act”.

Congress believed that Toyota set an “inappropriately high level of limitation necessary to obtain coverage under the ADA.”

Abrogating Toyota, the ADAAA provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this Chapter, to the maximum extent permitted by its terms.” Citing 42 U.S.C. §12102(4)(A).

The Court especially noted that Congress directed the EEOC to revise its regulations defining the term “substantially limits” to render them consistent with the broadened scope of the statute. Accordingly, the EEOC broadened the scope of “substantially limits” in favor of expansive coverage, making it a term that is not meant to be a demanding standard. See 29 C.F.R. §1630.2(j)(l)(i)(2013). The EEOC regulations now expressly provide that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving an actual disability. (Emphasis in Original).

The Court clarified that although impairments that last only for a short period of time are typically not covered, they may be covered “if sufficiently severe.”

The Fourth Circuit Court of Appeals held, “Pursuant to recent amendments to the Americans with Disabilities Act, a sufficient severe temporary impairment may constitute a disability. Because the District Court held to the contrary, we reverse and remand.”

Editorial Comment: There are a number of employers that use a six-month or a year off work rule to determine whether an individual’s temporary condition or injury constitutes a disability. There should not be such an absolute cut-off without considering each accident, injury or illness on a case-by-case basis. There should always be, even in the cases of temporary injuries or illnesses, an assessment of the severity of the injury, the chances of returning to work, and the restrictions made by the employee’s doctor. Give particular consideration to whether or not the employee has requested a reasonable accommodation, or if there is a reasonable alternative to accommodate the employee’s return to work. Always make sure that any request for a reasonable accommodation is considered in terms of whether it is possible to return the employee to work and be a productive employee. If you have light-duty jobs consider such a possibility as long as the light-duty job is available to everyone, lasts only for a specified period of time and that light duty job, in and of itself, is not considered to be a permanent job. Also make sure that light-duty jobs are available as long as such work duties are available.

In summary, remember transitory and minor conditions are still not actual disabilities, even under the ADAAA. However sufficiently severe injuries can be a disability even if the duration is less than six months. Courts are applying the ADAAA’s definition of disability broadly. Thus, consider each injury and medical leave broadly and consider each case separately on a case by case basis. Then engage in interactive dialogue with the employee to find a reasonable accommodation. Consult with your attorney when in doubt of what you should do prior to termination.

If you have questions on this, or any other labor and employment law issue, please contact the attorneys at Bowers Harrison.

Do Staffing Agencies Have Any Liability For New Hires Wrongful Acts?

Angry temporary employees are a risk at every workplace, but one temporary medical assistant, placed by a temporary health care staffing agency, took revenge to a whole new level.

Theresa Drummond (“Drummond”) was a temporary medical assistant placed at Kaiser Healthcare Facility by AMN Healthcare, Inc. (“Nursefinders”), a temporary healthcare employment placing agency.  Ms. Drummond worked alongside colleague Sara Montague (“Montague”) over a period of weeks.

After several minor outbursts and disputes, the two had over a several week period, Montague, who was drinking water from her water bottle, began to experience a burning sensation in her throat, eventually causing her to vomit.  Soon she discovered that Drummond had poisoned her water with carbolic acid, a corrosive chemical that causes chemical burns.  Although Montague did not think her disputes with Drummond were important, Drummond apparently thought the disputes were cause enough to take Montague’s water container and spike it with carbolic acid, a dangerous toxic substance.

While Montague did not suffer serious injury, Montague sued Drummond for battery and Nursefinders for negligence, charging that the placement agency has a duty to train the employees they place not to engage in angry disputes by poisoning employees they work with in the workplace, or as the Complaint charged, Nursefinders engaged in intentional infliction of emotional distress.  Thus the question became:  Do staffing agencies have a duty to train staff that they place to not engage in violent acts with fellow co-workers?

Court Determination

On Friday, February 21, 2014, the California Fourth Circuit Court of Appeals dismissed the suit against Nursefinders, finding that Drummond had “acted outside the course and scope of her employment.”  The Trial Court granted summary judgment to Nursefinders, finding that Drummond’s deliberate acts were not committed within the scope of her employment duties and that Nursefinders could not be found to be vicariously liable for Montague’s injuries.

The Trial Court also dismissed Montague’s claim for negligent retention, supervision and hiring, holding that there was no causation between Nursefinders’ hiring Drummond and her deliberate act to poison Montague’s water bottle.

The Trial Court rejected Nursefinder’s liability for two reasons:

  1. First, the California Appellate Court held there was no credible evidence the poisoning arose out of a work-related dispute, as opposed to simple personal animosity between Drummond and Montague.
  2. Second, and more importantly, the Trial Court held that Nursefinders, a staffing placement agency, could not be found liable for a personal and deliberate act between two employees, who were both working at Kaiser.

As the appellate court explained:

“Montague’s attempt to establish respondeat superior liability for Nursefinders simply because she and Drummond worked together at Kaiser is misguided.  The nexus required    for respondeat superior liability – that the tort be engendered by or arise from the work – is to be distinguished from ‘but for’ causation.  That the employment brought tort feasor and victim together in time and place is not enough.”  (Citing case).  The facts construed        most favorably for Montague do not support liability against Nursefinders because Drummond’s poisoning of Montague was unusual and startling.” 

The Trial Court also rejected Montague’s negligent training claim.  Montague argued that Nursefinders had a duty to train Drummond not to handle workplace disputes by poisoning her co-workers.  Although the Court did not directly address this argument, it simply assumed without deciding, that there is such a duty.  The Court explained, “Montague alleged that Nursefinders had a duty to train Drummond regarding the proper handling of work-related disputes and that its negligence in this regard caused her harm.

As a preliminary matter, we will assume without deciding that Nursefinders had a duty to train its employees regarding the avoidance of workplace violence. Phillips v. TLC Plumbing, Inc. (2009), 172 Cal, App. 4th 1133, 1140 (Liability for negligent hiring, training, and supervision is limited by basic principles of tort law, including requirements for causation and duty).”

The Court then went on to hold that Montague did not establish that Nursefinders failed to conduct workplace violence training:

“Drummond and the Nursefinders’ branch directors signed a document verifying that Drummond’s orientation included several topics including ‘workplace violence.’

Nursefinders also admitted it trained Drummond on Kaiser’s policies and procedures regarding ‘violence in the workplace’ and ‘management of threats and aggressive behavior.’ Montague cites to Drummond’s deposition testimony and her response to an interrogatory to show Drummond did not receive the specific training. Review of the evidence does not support her contention.”

The Court further commented that Montague’s contention appears to be that because Nursefinders trained Drummond on avoiding workplace violence and the poisoning incident occurred, that Nursefinders must have breached its duty to train Drummond in avoiding workplace violence, especially this breach which caused Montague’s injuries. The Court held, “We reject this contention as the suggested inferences are based on speculation and are not reasonably deducible from the evidence.”

Montague “cannot survive summary judgment simply because it is possible.”  See Montague v. AMN Healthcare, Inc., No. 063385 (Cal. Ct. App. Feb. 21, 2014.)

Editorial Comment:  Employers should always train their employees in all rules and regulations of the workplace, where their employees are expected to work to avoid inferences that the lack of training resulted in a co-workers injuries. Emphasize a zero tolerance for workplace violence or discrimination against others for any reason. Though not every example can be cited, there shouldn’t be any argument that a lack of training resulted in an individual knowing it is wrong to poison a co-worker’s water.  The take-away from this case is there should always be training and orientation covering the rules and regulations of the workplace in which the employee is being placed. Then post, publicize, educate and evenly enforce workplace rules and regulations.

If you have questions on this, or any other labor and employment law issue, please contact the attorneys at Bowers Harrison.

NLRB Finds Wal-Mart’s Post-Protest Discharges Did Not Violate The NLRA

The National Labor Relations Board’s (“NLRB”) Associate General Counsel issued an Advice Memorandum, dated February 1, 2014, clearing Wal-Mart Stores, Inc. (“Wal-Mart”) in case numbers 12-CA-105798, 12-CA-105847, and 12-CA-109743 of charges that Wal-Mart violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by disciplining and discharging two employees for engaging in protected activity and by unlawfully surveilling the Organization United for Respect (“OUR”) Wal-Mart’s in-store demonstration.

The NLRB Advice Memorandum concluded that “although a [prima facie] case could be made that the employees’ protected activity was a motivating factor” in Wal-Mart’s decision “to take action” against the employees, the charges should be dismissed, absent withdrawal.  That was based on Wal-Mart’s ability to show a Wright Line defense, that it would have disciplined and discharged the employees in the absence of protected activity.  Furthermore, the Associate General Counsel concluded that Wal-Mart did not engage in unlawful surveillance.


The facts that led to the unfair labor practice charges involved two employees (Associate 1 and Associate 2) at two Wal-Mart stores in St. Cloud, Florida and Orlando, Florida.  The OUR Wal-Mart is a national organization, whose stated goal is:

  1. To educate Wal-Mart’s employees about workplace rights; and
  2. To help them improve their working conditions at Wal-Mart. 

OUR Wal-Mart has had numerous rallies and demonstrations at Wal-Mart’s corporate headquarters and retail stores nationwide.

Wal-Mart maintains a progressive discipline policy entitled, “Coaching for Improvement Policy.”   Under that policy, an employee may only receive one of each of three written coaching levels (first, second, and third) in any 12 month period.  If an employee’s unacceptable job performance or conduct warrants a level of coaching and the employee has already received a third written level of coaching within the 12 month period, the employee is subject to termination. 

The policy also states that an employee may be immediately terminated, “if [his or her] unacceptable conduct is found to be serious.”  Examples of “serious” misconduct include “intentional failure to follow Wal-Mart policy and theft, fraud, or abuse of an associate benefit or other action involving financial integrity issues.”

Associate 1 Termination

Associate 1, a Wal-Mart employee at Wal-Mart’s St. Cloud’s Florida store, was a member of OUR Wal-Mart since early 2012, but Wal-Mart did not become aware of her involvement until late November, 2012, when she went on strike and picketed outside her store. On April 24, 2013, Associate 1 participated in a demonstration at Wal-Mart’s Kissimmee, Florida store with 20 or more other individuals.  When Associate 1 returned to work a few days later, none of her supervisors said anything to her about her participation at the Kissimmee store demonstration.

Shortly after the Kissimmee store demonstration, Associate 1 met with her store managers. They told her that during the course of disciplinary investigation of a different employee, Wal-Mart noticed via the store security video tape that Associate 1 and a 2nd employee were taking extended breaks.  The managers told her that her breaks were anywhere from 3 to 20 minutes beyond the permitted 15 minutes break time, and that her extended break time added up to about 295 minutes over 12 shifts.

Associate 1 acknowledged that she knew she was only allowed to take 15 minute breaks, but claimed that she was not aware that she had taken longer breaks. Following this meeting, a store manager spoke to an “Employer Advisory Service” advisor, who handles time theft investigations for Wal-Mart.  The advisor recommended that Wal-Mart terminate Associate 1, because she admitted knowing about the policy and repeatedly violated it without a reasonable explanation.  Associate 1 was terminated on May 18, 2013 for time theft (violating the company’s break policy).

Wal-Mart provided the General Counsel with the surveillance video tapes, which establish that on at least 19 occasions over the course of a month Associate 1 remained in the break room for longer than 15 minutes.

Wal-Mart also provided evidence that it terminated the second employee on May 15, 2013.  Wal-Mart provided copies of the Exit Interview Forms of other employees, showing they were discharged for various dishonest acts, most of which involved theft of time (i.e. falsifying time records) and theft of merchandise. These violations did not require any coaching steps prior to termination.  Two additional employees from another Florida store were also discharged for taking extended breaks after Associate 1 and the 2nd employee were discharged.

Associate 2 Termination

Associate 2 worked at Wal-Mart’s Orlando, Florida store and joined OUR Wal-Mart in October, 2012.  However, she did not engage in any activity until November 21, 2012, when she participated in a demonstration at Associate 1’s store; and then again, two days later when she participated in a one-day strike at her own store.

In January 2012, Associate 2 cut her finger and received a first level coaching for failing to use proper safety procedure by unplugging a deli-slicer before cleaning it.  Wal-Mart provided evidence that another employee was terminated for the same violation.

On December 5, 2012, Associate 2 was issued a 2nd level coaching for failure to complete her assigned tasks on December 5, which consisted of filling the deli-service case and filling the sales floor.  Wal-Mart provided evidence that around the same time another employee who failed to complete her work assignments was issued a 3rd level coaching and subsequently terminated. 

On January 30, 2013, Associate 2 was issued a 3rd level coaching for violating the employer’s dress code by wearing dangling earrings.  Associate 2 later learned that on January 29th, another employee was verbally warned to remove her dangling earrings, but was not given a coaching or written warning.  Wal-Mart provided a copy of its dress code policy that states that food handlers may wear only single stud earrings.

On May 25, 2013, Associate 2 failed to comply with Walmart’s policy on food contamination safety and its prohibition on personal belongings in the work space when she left her handbag on the shelf of a table where salads and sandwiches are made.  Another employee also had a bag on the shelf, and she received a 1st level coaching because she had no prior discipline.

On May 28, 2013, Associate 2 notified Wal-Mart that she was going on strike.  From May 28 through June 11, she participated in OUR Wal-Mart’s “Ride for Respect” strike in Bentonville, Arkansas during Wal-Mart’s annual stockholder’s meeting.

On June 21, 2013, Associate 2 was called into the store manager’s office and told that she was being discharged over her May 25th violation.  Her discharge form designated the reasons for her discharge as “Misconduct with Coachings,” because she engaged in misconduct while on the last step of the progressive disciplinary process. Wal-Mart provided evidence of other employees who were discharged when they engaged in similar misconduct while on their last step of the disciplinary process.

Surveillance Charges

As to the surveillance charges, Wal-Mart presented evidence that employees were videotaped by a cellphone of the OUR Wal-Mart’s group of employees at an in-store demonstration, which violated Wal-Mart’s cease and desist/no trespass letters to OUT Wal-Mart and its parent organization, the UFCWU (United Food & Commercial Workers Union) instructing that non-employees of Wal-Mart shall not enter onto or in Wal-Mart property to engage in any demonstrations. 

Wal-Mart’s claim that OUR Wal-Mart, the UFCWU and their representatives disregarded the letters and trespassed more than 15 times in 2012 and early 2013 sometimes requiring police assistance before OUR Wal-Mart left the property.

In March 2013, Wal-Mart filed a Florida state trespass lawsuit seeking injunctive relief against OUR Wal-Mart and the UFCWU for multiple in-store demonstrations, blocking ingress and egress, and other trespass violations.

Wal-Mart gave evidence that it did not see Associate 1 or any other current employees participating in the demonstration, that none of the demonstrators identified themselves as employees, and that none of the store managers knew Associate 1.

Wal-Mart also presented evidence that the demonstrators blocked access to the grocery registers that stopped customers, while the demonstrators huddled in a group and loudly chanted and shouted profanities at Wal-Mart. The Regional Manager attempted to take a cell phone photo of this demonstration, but the camera did not work so he put it away.  Wal-Mart claimed that the photos were relevant to the ongoing state trespass litigation against OUR Wal-Mart.


Associate General Counsel, Barry J. Kearney, concluded that although a case could be made that the employee’s protected activity was a motivating factor in Wal-Mart’s decision to take action against Associate 1 and Associate 2, the Region should dismiss the charges, absent withdrawal, because Wal-Mart can establish that it would have disciplined and discharged the employees even in the absence of their protected activity.  Additionally, the Region should dismiss the surveillance charges absent withdrawal because Wal-Mart had a legitimate reason for photographing OUR Wal-Mart’s in-store demonstration.

The Wright Line Defense

The Associate General Counsel cited the NLRB’s decision of Wright Line, 251 NLRB 1083 (1980) enf’d, 662 F.2d 699 (1st Cir. [1981]) , cert. den. 455 U.S. 989 (1982) and its mixed motive analysis in circumstances where the employer asserts that it discharged and employee because of activity unrelated to an employee’s protected concerted activity.

To establish a Wright Line defense that an employee’s discharge or other discipline violates the Act, the General counsel must:

  1. Demonstrate by a preponderance of the evidence that the employee was engaged in protected activities,
  2. The employer had knowledge of such activity,
  3. The employer exhibited animus or hostility toward the activity, and
  4. The employee’s protected activity was a “motivating factor” in the employer’s decision to take adverse action against the employee.

Here, although the General Counsel met its initial burden under the Wright Line, as Associate 1 and 2 repeatedly engaged in protected activity throughout 2012 and 2013 and that Wal-Mart knew about such activity. However Wal-Mart has shown, under Wright Line, that it would have taken the same action, even in the absence of the protected activity.  To prove this, Walmart presented evidence that similarly situated Wal-Mart employees were disciplined and discharged for engaging in the same conduct.

Further, as to timing, although Associate 1 was discharged shortly after the Kissimmee’s store demonstration, Wal-Mart provided evidence that it was already investigating her for taking excessive breaks before that demonstration. 

Similarly, while Associate 2 was discharged three weeks after the last incident and almost immediately after her return from engaging in the Ride for Respect strike, Wal-Mart persuasively points out that it did not have a chance to schedule a meeting with her prior to that time.  Furthermore, Wal-Mart presented evidence that other employees, who were discharged for engaging in the same misconduct while on their 3rd level of coaching, were also discharged about three weeks after their last incidents. 

The Associate General Counsel therefore concluded that Wal-Mart met its Wright Line burden to show that it would have disciplined and discharged Associates 1 and 2 regardless of their protected concerted activity.

Editorial Comment:  Non-Union workers who act in concert have the right to protest their working conditions.  An individual employee acting alone does not have such rights and is not protected from discharge. If employees walk off of the job, they cannot be fired for their protested activities in striking for better working conditions, but once this happens such employees take on the status of economic strikers.  Economic strikers are legally protected from being fired for their economic strike, but they can be permanently replaced by an employer to keep its business going.  Once the strike ends the employer does not have to fire the replacements and does not have to re-hire an economic striker, unless the position opens up again or a substantially equivalent position becomes available.

If employees are protesting abnormally dangerous working conditions (toxic substances, radiation exposure or violence), then the employees are not economic strikers and are not subject to replacement.

If employees are striking to protest an employer’s unfair labor practices, such as retaliating against workers for their protected concerted activities, they must be reinstated to their former jobs, when the strike or walkout is over. These employees cannot be permanently replaced.

If you have questions on this, or any other labor and employment law issue, please contact the attorneys at Bowers Harrison.