Posts Tagged ‘disability’

In the case of Jaszcyszyn v. Advantage Health Physician Network, the Sixth Circuit recently sided with an employer that terminated an employee after it caught her partying at a Polish heritage festival while she was supposedly too disabled to work.  It’s a case of Facebook strikes again.  The termination was based upon the employer’s belief that the employee was engaging in FMLA fraud.

The whole ordeal came to the employer’s attention after the partying employee was spotted by her Facebook friend/coworker partying it up while her colleagues were at the office covering for her.  Naturally, the coworker took the pictures to a supervisor.

The employer gave the employee an opportunity  to explain the discrepancy between her claim of complete incapacitation and her partying behavior in the photos.  Guess what?  The employee didn’t really have a response, was silent, or claimed that she was in pain at the festival and just not showing it.  When the employee repeatedly failed to respond or to provide a legitimate justification for her action, the employer terminated her.  Following the employee’s termination, someone in HR completed a report that selected “absenteeism/lateness” from a list of six possible reasons for discharge.

The employee filed a lawsuit in the U.S. District Court for the Western District of Michigan alleging that she was fired in violation of the FMLA.  Her claims included a count for interference with her right to take leave and a count for retaliation for taking leave.  The trial court dismissed the employees’ claim before it went to trial and the employee appealed to the Sixth Circuit.

On appeal, the court found that the employer had not interfered with the employee’s right to take FMLA leave as it had granted her requests for FMLA leave in full.  As for the employee’s retaliation claim, the court found that the employee offered little or no evidence linking her termination to activity protected by the FMLA.  Moreover, even though the person in HR had checked “absenteeism” on the form rather than “fraud” the court was not persuaded that the employee’s mere use of leave was the reason for her termination.  The court specifically said that selecting absenteeism on a standardized form did not establish that the employer’s explanation of the firing was a pretext for unlawful retaliation.  Rather, the court found that the employee never refuted the employer’s honest belief that the employee’s partying at the Polish heritage festival was inconsistent with her claims of disability.  Therefore, the employee could not show that the employers legitimate reasons for terminating the employee, i.e., her fraudulent behavior, was a pretext.

Employer Tip:  Employers should be aware of the sensitive issues that surround terminating employees while they are on FMLA leave.  While this case ended well for the employer, the employee might have had less fodder for her lawsuit if the HR person had not checked “absenteeism”, but had rather written “fraud” on the form.  It is recommended that you consult with an attorney before making such decisions.  The attorneys at Harmon & Davies are here to advise employers on all Employment and Labor Law matters.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in FMLA, Labor & Employment | No Comments »

In late October 2012, a New Jersey appeals court issued a ruling that gives employers reason to carefully check their drug and alcohol policies.  In A.D.P. v. ExxonMobil Research & Eng’g Co. an employee identified herself as an alcoholic seeking rehabilitation and pursuant to company policy, the company entered into an after-care contract with the employee that required her to submit to random drug testing for a two year period during which time she had to abstain from alcohol use or else she could be terminated.  After failing one of 10 random alcohol tests, ExxonMobil terminated the employee and she sued the company under the New Jersey Law Against Discrimination (“NJLAD”) alleging that the after-care contract and its terms, imposed upon her solely because she identified herself as an alcoholic, along with ExxonMobil’s termination of her for violating the after-care contract, constituted disparate treatment discrimination based on disability.

The trial court dismissed the employee’s claims before her case went to trial, but on appeal the appellate Court found the dismissal of the employee’s claims to be improper on the grounds that the after-care contract and the testing requirements contained therein constituted a policy that was imposed only against employees who were identified as alcoholics.  The court found that although the use of alcohol alone would not be grounds for terminating the employment of other employees, alcoholics like the employee could be fired for one “slip” even if their job performance was not affected.  Thus, the Court held that the policy was facially discriminatory and direct evidence of bias.

  1. Where the Court Found Fault with ExxonMobil’s Drug and Alcohol Policy

In the ExxonMobil case, the company’s written drug and alcohol policy mandatorily and uniformly required that any employee identified as an alcoholic agree to submit to random alcohol testing for two years after being so identified.  The New Jersey appellate court found that ExxonMobil’s reliance upon such blanket requirements only confirmed the facially discriminatory nature of the Policy and undermined the defenses that the employer tried to present.  Indeed, the alcohol testing imposed on the at-issue employee was never initiated as a result of performance related issues.  Rather, the testing requirement was imposed only after the employee voluntarily disclosed to a company nurse that she was an alcoholic and was going to check herself into a rehabilitation program.  This disclosure resulted in the blanket imposition of ExxonMobil’s after-care contract upon the employee, the terms of which included submitting to random drug tests for a period of two years.

The purpose of ExxonMobil’s drug and alcohol policy was to promote the company’s commitment to a safe, healthy, and productive workplace.  Under the policy, being unfit for work because of drug or alcohol use was grounds for termination.  However, the policy also provided that employees with alcohol or drug dependency problems undergoing rehabilitation would not be fired, but would be required to sign an after-care contract as a condition of returning to work.  The after-care contract required a returning employee to maintain total abstinence from drugs or alcohol, submit to random drug testing for two years, and consent to monitoring for an additional three years.  According to the after-care contract, a positive test was grounds for discipline including termination.

In the ExxonMobil case, the employee was terminated after passing nine random breathalyzer tests when her tenth breathalyzer test showed a blood alcohol level of .047 and .043 (under the state legal limit of .08 for driving under the influence) even though there was no evidence that she consumed alcohol at work or that she violated a company policy by being unfit for work because of alcohol use.  There was also zero evidence that she had been told that her job performance had become unacceptable.

Rather, the evidence showed that the imposition of the after-care contract was unrelated to the employee’s job performance.  In fact, a representative of the company went so far as to say that the employee would have been terminated for failing the breathalizer even if she had been performing at the top one-percent of her group.

Under these circumstances, the New Jersey Court found that the employee’s claims should not have been dismissed before trial because the evidence (viewed in the light most favorable to the employee) showed that the basis for ExxonMobil’s testing requirement and its termination of the employee was her voluntary disclosure that she was an alcoholic, not her subpar work performance. Thus, the court found the imposition of the testing requirements and the decision to terminate the employee for failing a breathalyzer test amounted to direct proof of discrimination.

  1. Why ExxonMobil’s Defenses Failed

Interestingly, ExxonMobil might have defeated the employee’s claims despite the direct proof of discrimination if ExxonMobil had been able to show that it would have terminated the employee even in the absence of her failed breathalyzer test.  Indeed, New Jersey law provides two statutory justifications for employers in such situations, but ExxonMobil did not attempt to avail itself of either justification, most likely because these statutory justifications are based upon performance issues, and there was absolutely no evidence that the employee had performance issues.

Instead, the company tried to justify its policy on the grounds of “reasonableness.”  However, the so-called reasonableness test, which the employer argued was based on business necessity and safety failed because: (1) the business necessity defense only applies in adverse impact discrimination cases and this case involved disparate treatment bias; and (2) although the safety defense applied, ExxonMobil could not establish the defense because the safety defense requires an employer to make an individualized assessment of the safety risk, and there was no evidence in the record that an individualized assessment of any kind was conducted in this case.

  1. The Takeaway

If you are an employer and your drug and alcohol policy could result in an employee being fired based solely upon the employee being identified as an alcoholic or drug addict, and not as a result of performance issues or any individualized safety assessment, your policy might be found to be facially biased and direct proof of disability discrimination.  If this is the case, revisions to your policy are encouraged.

The attorneys at Harmon & Davies, P.C. are here to assist employers with all employment law related needs, including assisting employers with drafting and revising drug and alcohol policies.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Drug and Alcohol Testing and Policies, Labor & Employment | No Comments »

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) proudly announced on March 22, 2012 that it entered into a conciliation agreement to resolve allegations of hiring discrimination by two subsidiaries of FedEx Corp. with federal contracts.  These subsidiaries, like most companies that are awarded federal contracts, must comply with OFCCP requirements and regulations.

By way of background, federal contractors of a certain size or with federal contracts of a certain amount must file annual affirmative action plans (“AAPs”).  AAPs are generated using computer software.  The computer software creates an overview of the federal contractor’s workforce based on the overall workforce and the number of applicants, hires, promotions, and terminations that occurred during the previous year.  Such computer programs specifically look at the number of female and minority applicants, hires, promotions, and terminations to determine whether the federal contractor’s decisions with respect to hiring, promoting, and terminating indicates any statistically disparate impact on females and minorities.

In the case of the two FedEx subsidiaries, the OFCCP’s allegations against the FedEx subsidiaries were based on computer statistical analysis that presumably indicated a disparity in the subsidiaries’ hiring process and sparked the OFCCP’s investigation.  In other words, the OFCCP’s allegations against FedEx did not step from individual complaints of discrimination.  Even though no one apparently complained that FedEx’s subsidiaries discriminated against them during the hiring process, according to Secretary of Labor, Hilda L. Solis, that is okay because findings of discrimination can rest on disparate impact statistical analysis alone.  In the FedEx case, according to Solis, the OFCCP saw statistical “trends of discrimination, not only against one group, but against many groups across the country.”

More specifically, according to the OFCCP News Release, during a series of regularly scheduled reviews, OFCCP compliance officers found evidence that FedEx’s hiring processes and selection procedures violated Executive Order 11246 by discriminating on the bases of sex, race, and/or national origin against specific groups identified at 23 facilities in 15 states.  The reviews also allegedly uncovered extensive violations of the executive order’s record-keeping requirements.

The FedEx subsidiaries admitted no wrongdoing, but rather than engage in a prolonged and expensive resolution process with the Department of Labor, the subsidiaries entered into a conciliation agreement with the OFCCP under which the companies agreed to pay a total of $3 million in back wages and interest to 21,635 applicants who were rejected for entry-level package handler and parcel assistant positions and agreed to extend job offers to 1,703 of the affected workers as positions become available.

The FedEx subsidiaries also committed to wide-ranging reforms including: (1) the company promising to correct any discriminatory hiring practices and implement equal employment opportunity training; (2) launching extensive self-monitoring measures to ensure that all hiring practices fully comply with the law; (3) agreeing to engage an outside consultant to perform an extensive review of the company’s hiring practice and provide recommendations to change and improve those practices; (4) agreeing to train incumbent and future supervisors and employees to monitor compliance with the equal opportunity laws enforced by the OFCCP; and (5) taking necessary steps to comply with all record keeping requirements.

The conciliation agreement entered into by the FedEx subsidiaries appears to have been an economic decision made by the company.  It will forever remain unknown whether FedEx actually engaged in discriminatory hiring decisions.

What’s clear from the FedEx ordeal is that federal contractors should be particularly attentive when it comes to OFCCP compliance. In addition to Executive Order 11246, the OFCCP enforces certain other acts aimed at protecting the disabled and veterans.  Those who do business with the federal government, both contractors and subcontractors, must not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran.

For assistance with creating your Affirmative Action Plan or other OFCCP compliance issues, please contact Harmon & Davies, P.C.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Affirmative Action Plans and OFCCP Compliance, FedEx SmarkPost Inc. | No Comments »