September 2017

Should You Reasonably Accommodate a Temporary Employee?

In Punt v. Kelly Services, 861 F.3d 1040 (10th Cir. 2017), the Tenth Circuit Court of Appeals unanimously held that a temporary employee’s request for an undetermined leave of absence was not a reasonable request for accommodation under the Americans with Disabilities Act (“ADA”). This is a critical holding because it acknowledges that an employee’s temporary status can be considered in determining the reasonableness of an accommodation request.

GE Controls Solution (“GE”) had a staffing agreement with Kelly Services (“Kelly”), under which Kelly provided and assigned temporary employees to GE on an as-needed basis. Pursuant to this agreement, GE could ask Kelly to remove any of its temporary employees from their assignment at GE for any reason. Kelly also had the right to cancel an employee’s assignment with GE.

In late 2011, Kelly assigned the plaintiff to GE to fill a temporary, full-time receptionist position, and she worked there from October 24, 2011 through December 5, 2011. In November 2011, while working at GE, the plaintiff learned she had breast cancer. During the first six weeks of work, the plaintiff was absent from work six times. The plaintiff was also late to work on three occasions and left work early on three occasions. While the plaintiff was gone from work, another temporary employee assumed the plaintiff’s receptionist duties. On December 5, the plaintiff emailed her contact at Kelly and informed her that she would not be coming to work that week. In a follow-up email, the plaintiff explained that she would need additional time off for tests and for radiation treatments. Consequently, GE advised Kelly that it wished to end the plaintiff’s assignment.

The Tenth Circuit held that the plaintiff’s request for leave was not reasonable under the ADA. In evaluating the reasonableness of the plaintiff’s request, the court explained that “the term ‘reasonable accommodation’ refers to those accommodations which presently, or in the near future, enable the employee to perform the essential functions of his job.” The court further noted this was particularly true “in light of [the plaintiff’s] position as a temporary employee whose physical presence at the workplace was the most essential function of her job.”

The court also found that to find a replacement for the temporary employee would mean that GE needed to find a “super-temporary” employee to fill in for the plaintiff whenever she needed time off, while simultaneously allowing the plaintiff to return to her temporary position whenever she felt up to attending work. Thus, based on the temporary nature of the plaintiff’s assignment, the amount of leave that she had already taken, the additional amount she requested, and the uncertainty of how much more leave she would need, the Tenth Circuit agreed with the district court’s conclusion that the plaintiff’s accommodation request was unreasonable as a matter of law.

RLG Takeaway
While fact specific, this decision affirms that attendance can be an essential function of a temporary employee’s job, and that an employee’s temporary status is an important factor in evaluating the reasonableness of an accommodation request under the ADA. This decision did not address long-term temporary employees—which could raise additional issues. Thus, employers that utilize temporary workers should continue to exercise caution in considering accommodation requests from those employees and seek legal advice when such questions arise.

Minnesota Whistleblower Claims Expanded

On August 9, 2017, the Supreme Court issued a decision in Friedlander v. Edwards Lifesciences, LLC, that makes it easier for an employee to bring a retaliation claim under the Minnesota Whistleblower Act (“MWA”).

To successfully bring a MWA claim, an employee has to show that he or she reported an alleged wrongdoing in “good faith.” Previously, courts interpreted “good faith” to require that an employee blow the whistle to “expose an illegality.” In 2013, however, the MWA was amended by the Legislature to define “good faith” to exclude only statements that are knowingly false or in reckless disregard of the truth.

In Friedlander, the employee claimed his former employer, Edwards Lifesciences, violated the MWA by terminating him in retaliation for reporting allegedly wrongful conduct to his supervisor and others. Edwards Lifesciences argued that Friedlander did not “blow the whistle” because he made his report to people who already knew about the allegedly unlawful conduct. Therefore, the report was not made for the purpose of exposing an illegality as required by law. Friedlander argued that the employee’s motivation was no longer relevant because the 2013 amendment to the MWA eliminated the “expose an illegality” requirement.

The Court held that the Legislature’s intent was to look only to the content of the whistleblower’s report, not the whistleblower’s purpose in making the report. Accordingly, employees may be subject to protections under the MWA for reporting allegedly unlawful conduct, even if their purpose is not to expose an illegality, as long as the report is not knowingly false or in reckless disregard of the truth.

RLG Takeaway
Under Friedlander, the good-faith requirement has been significantly lowered, and employers are likely to see more whistleblower claims in the future. Therefore, employers should take employee reports seriously and contact legal counsel when it decides to conduct an investigation. Additionally, employers should continue to ensure that any adverse employment actions are based on documented performance issues and legitimate business needs, not an employee’s reporting of allegedly unlawful conduct.

Politics in the Workplace: How to Deal with Diverse Discussions

We are seeing it all over the country—a brief political comment turns into a conversation and then an argument. Voices are raised and operations are disrupted. Feelings are hurt and the team suffers.

In this heated and complex political arena, companies should recognize that the current political environment may be having an effect on people, especially if they’re talking about it in the office.

Senior leaders and supervisors can communicate a powerful message by modeling the behavior and actions the company is trying to promote at an organizational level and staying neutral when it comes to political discourse.

Here are some focus points for HR to help manage manage workplace-political discussions:

Training. Supervisors, managers and executives have a special responsibility because they manage other people. That makes their involvement in political discourse even trickier. Leaders should remain neutral. Remember, an employer may not discharge or threaten to discharge any employee because of the way he or she voted or plans to vote in any state, county or municipal election. Employers cannot pressure or give the perception of pressuring employees to support certain candidates or to make contributions to any candidate. Managers should avoid any implications that they are trying to advance their own political agendas. Employees and managers should not display “Vote for” signs, stickers, or magnets in the office, even in individual offices or cubicles. Buttons showing support for particular candidates should not be worn and company dress codes should cover political apparel.
Discrimination laws. Discrimination laws can be triggered with political discussions. For example, if a political discussion turns to religion—that is a protected class. Again, training is critical here. Remind leadership to be mindful of comments about politics that could be seen as discriminatory, intimidating or creating a hostile work environment. Moreover, these leaders must be careful not to let their or their direct report’s personal political views affect your view of their job performance or any job-related decisions.
Know what activity is protected. The federal National Labor Relations Act (NLRA) protects certain concerted actions by employees who are discussing changes to a workplace condition, such as discussing candidates’ positions on raising the federal minimum wage. The General Counsel of the National Labor Relations Board (NLRB) concluded that an employer may not interfere with political speech where there is a “direct nexus between employment related concerns and the specific issues that are the subject of the advocacy.” While this law protects some political activities, it doesn’t give employees the right to discuss politics that aren’t work-related during work hours or while on their employer’s property. Some political discussions are work-related, however. For example, you wouldn’t want to try to stop employees from talking about their pay in light of gender pay equality laws or from building support in the workplace for a paid sick leave policy. You’d also want to avoid restricting any discussions of unions or unionization. Finally, you also don’t want to restrict off-duty political activity.

Update your employee handbook. The employee handbook communicates expectations for employees in the workplace, and it can be key in avoiding these difficult situations. The “Code of Conduct” section in your employee handbook should outline your expectations that all employees will treat each other with dignity and respect differences in opinions. Use this code of conduct as an opportunity to remind employees of your harassment, discrimination, and equal employment opportunity polices. Also, address electronic communications, which can be become as heated as verbal conversations and are much more likely to be misinterpreted. Advise employees that all activities will be monitored. Take caution to ensure that your social media policies and practices are applied fairly and consistently.

RLG Takeaway
The trouble with heated political discussions is not that they’re political—but that they’re disruptive and potentially harassing. Companies should make clear to employees that while differences are welcome, employees should not engage in disruptive or harassing discussions with others—regardless of their political beliefs, and certainly to not disrupt the work time of others around them.

Do You Have the New Form I-9?

While you may be familiar with the I-9 form (since everyone that has hired an employee since 1986 should have them on file), you may not know that beginning on September 18, 2017, employers will be required to use a new I-9 Form. The changes were announced last month through a new U.S. Citizenship and Immigration Services publication. From small grammar and punctuation changes to an increased number of identification documents accepted in certain sections, many revisions were made. The new form I-9 can be found here: https://www.uscis.gov/i-9.

Besides changing the wording on the form in minor ways, the new version renumbers all List C documents except the Social Security card and streamlines the certification process for certain foreign nationals. The revisions to the form relate to USCIS’s List of Acceptable Documents and specifically update List C to reflect the most current version of the certification or report of birth issued by the U.S. State Department.
Employers completing the Form I-9 on a computer will be able to select the newly added Consular Report of Birth Abroad Form FS-240, which is issued to certain employees born overseas to a U.S. citizen parent. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for employment eligibility verification. All birth certificates issued by the State Department (Form FS-545, Form DS-1350 and Form FS-240) will be compiled into selection C#2 in List C.

The new form will modify the form’s instructions by removing “the end of” from the phrase “the first day of employment” in reference to completing Section 1. While the agency did not specify the reason for this change, it was likely made to ensure consistency with the regulations which indicate that Section 1 must be completed at the time of hire, without any reference to the particular time of day.

RLG Takeaway
Employers may want to revisit their I-9 policies and procedures to ensure that Section 1 is completed no later than when the employee starts work for pay and that the correct documents are used for verification.

GINA Safe Harbor Language

Although employers are generally prohibited from obtaining medical information about their employees, they are permitted to do so in certain circumstances, including when such information is necessary to evaluate a job applicant’s or employee’s request for an accommodation under the Americans with Disabilities Act (ADA).

When obtaining medical information as part of the ADA interactive process, employers should keep in mind the provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA).
Critically important to employers is that intent is not a required element for a GINA violation. Thus, an employer can be found in violation of GINA if the employer obtains genetic information despite not requesting or having any intent to receive such information.

Employers should consider using the following “safe harbor” language:

The information we are seeking relates only to any condition you may have that affects your ability to perform your essential job functions. Please note that the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and note entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you and your medical provider not provide any genetic information when responding to this request for medical information.

RLG Takeaway
Safe harbor language can be used to protect an employer against an inadvertent GINA violation. We suggest using this language for any requests for medical information for purposes of evaluating an accommodation request under the ADA as well as general request for HIPAA protected information.

Terminated Google Employee Controversy

James James Damore, a recently terminated Google engineer, has filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”) alleging that the company violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”) by “making threats of unspecified reprisals” against employees engaging in protected concerted activities.

Damore’s termination came after he circulated a 10-page memorandum last week, criticizing the company’s approach to diversity issues and questioning the root causes of the industry’s gender gaps. In his complaint, Damore alleges that by firing him, Google violated the NLRA, which protects collective action by employees. It is Damore’s position that his memorandum (which is also being referred to as a “manifesto”) was designed to instigate collective action among his co-workers, and that it wasn’t so defamatory or offensive to forfeit legal protection.

RLG Takeaway
Resolution of this case will be particularly interesting in light of recent cases involving speech categorized by employers as defamatory or offensive. For example, the Eighth Circuit recently issued a decision in Cooper Tire & Rubber Co. v. NLRB, No. 16-2721 (8th Cir., Aug. 8, 2017), upholding an earlier decision of the Board protecting the right of a striker to yell racist epithets at African-American workers from the picket line. Watch for an update as this case progresses.

This newsletter is provided for informational purposes only, not as legal advice. The reader of these materials should seek legal advice before using this or any other materials from this author.