Soaring Disability Discrimination Claims – How to Protect Your Organization
The Goldstein Law Firm
April 2011 Newsletter
By: Charles H. Goldstein, Esq.
“Soaring Disability Discrimination Claims – How to Protect Your Organization;
The U.S. Supreme Court’s Decision in Straub v. Proctor Hospital – What Employers Can Do To Avoid these Serious Problems;
Retaliation Claims under the Fair Labor Standards Act Do Not Have to Be in Writing to Trigger Employer Liability;
Do Companies Operating in Several States Really Want Local Juries and Judges Hearing Your Cases? – How Arbitration Agreements Protect These Employers
I have successfully practiced law in California now for almost 50 years. My clients and I have navigated the legal consequences of several market cycles and legal trends, including the bitter labor strikes of the 1960s and 1970s, the explosion of sexual harassment lawsuits in the 1980s, the wage and hour class action lawsuits of the 1990s, and the business litigation disputes of the past decade. However, the one constant that I have observed as an active and successful practitioner over all these years is this: those employers and companies who consistently focus on the basics – conducting their business and who protect themselves against litigation – survive and prosper. Those employers and businesses who are unable to consistently execute their business plan and who ignore potential legal threats and/or lawsuits, do not survive.
I. Soaring Disability Discrimination Claims – How to Protect Your Organization
Employee suits against employers for disability discrimination and for violation of the federal Family Medical Leave Act and California Family Rights Act are soaring. The U.S. Equal Employment Opportunity Commission that enforces federal anti-discrimination laws reports that last year claims for disability discrimination jumped 17 % from 2009 and are 53% higher than they were a decade ago.
The typical disability discrimination case arises from a long term employee who is absent for a serious medical problem that may or may not be work related, who wants to return to work, collect a full pay check and perform as much of their work as they, and not you, deem acceptable. In other cases, a workers’ compensation case turns into a disability lawsuit because the employer has a duty to engage in a good faith interactive process to return the employee to work and to attempt to find a “reasonable accommodation” to be able to return the employee to work. The terms “reasonable accommodation” and what constitutes a good faith interactive process are not clearly defined under both federal and state law, and therefore are fertile ground for plaintiff’s attorneys to exploit the phrase’s meaning and your compliance with that meaning.
Tips for Protecting Your Company From Disability Discrimination Claims
- Make certain that your company’s policies regarding the Family and Medical Leave Act, Worker Compensation Leave; and return to work from medical leave are updated annually.
- Make certain that your return to work policy gives the company the right to have the returning employee submit to an appropriate medical examination that ensures only employees who can perform the essential duties of the job are returned to work.
- Make certain that you have a readily accessible medical clinic that will certify, if circumstances exist, that the employee can in fact perform the essential job duties. This is because the employees’ own health care provider may be so sympathetic to their patient that they return the employee to work merely because the employee “believes” that he or she can perform the job and not because, in their “objective medical opinion” the employee can perform the job.
- Do not create make-work “light duty” jobs just to get disabled employees off the insurance company’s roles and back onto your organization’s payroll.
- Only return an employee to an economically necessary job when the employee has been medically released to perform the essential duties of the job that the employee is returning to perform.
- Engage in and document the good faith interactive process to find a reasonable accommodation.
- Do not accept any accommodation as “reasonable” that does not make economic sense.
II. The U.S. Supreme Court’s Decision in Straub v. Proctor Hospital Can Create Serious Problems for All Employers – What Employers Can Do To Avoid these Serious Problems
The U.S. Supreme Court’s recent decision in Straub v. Protector Hospital can have far reaching consequences for all employers trying to prevent and defend costly discrimination lawsuits. Straub dealt with discrimination under the Uniformed Service Employment and Reemployment Rights Act of 1994. However, it will be used by lawyers who represent employees in federal and state employment discrimination cases to argue for the imposition of liability against employers, even where the employer’s decision-maker did not possess any discriminatory animus against the fired employee.
Straub, who was a member of the Army Reserve, was an angiography technician who was employed by Proctor Hospital. As part of his Army Reserve obligation, Straub was required to attend drills one (1) weekend a month and to train full time for 2 to 3 weeks a year. Straub contended that both of his immediate supervisors were hostile to Straub performing his military obligations and one supervisor scheduled Straub for additional shifts without notice so that he would “pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserve.” Straub’s immediate supervisor also informed Straub’s co-workers that Straub’s military duty had been a strain on the department and asked the employee’s assistance in “getting rid” of him. Another supervisor of Straub referred to Straub’s military service obligations as “a bunch of smoking and joking and a waste of taxpayers’ money.” He was also aware that Straub’s immediate supervisor was out to get Staub.
Straub’s immediate supervisor issued him a Corrective Action disciplinary warning for violating a company rule requiring him to stay in his work area whenever he was not working with a patient. The Corrective Action required him to report to his supervisors when he ran out of patients. The justification for the Corrective Action was false in two respects. First, the company did not have such a rule and second Straub did not violate the rule, even if the rule had existed.
Four months after the Corrective Action warning was issued, another co-worker of Straub complained to Linda Buck, Proctor’s Vice President of Human Resources and Garrett McGowan, Proctor’s Chief Operating Officer, about Straub’s frequent unavailability and abruptness. McGowan directed Buck to create a plan that would solve Straub’s availability problems. Three weeks later, before they had time to create the plan, Straub’s immediate supervisor informed Buck that Straub had left his desk without informing a supervisor in violation of the January Corrective Action that Straub now contends was false because he had left her a voice mail notification that he was leaving his desk. Relying on Straub’s immediate supervisor’s accusation and after reviewing Staub’s personnel file, Buck decided to terminate Straub. The termination notice stated that Straub had ignored the directive issued in the Corrrective Action.
Straub sued Proctor under the Uniformed Service Employment and Reemployment Rights Act of 1994 claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Buck, the decision-maker in his termination, had any such anti-military hostility, but that his two (2) immediate supervisors did and that their actions influenced Buck’s ultimate employment decision. While a jury at the trial level found for Straub, the U.S. Seventh Circuit Court of Appeals reversed and found for Proctor as a matter of law because the Seventh Circuit Court did not want to hold Proctor liable for the animus of a supervisor who was not charged with making the ultimate employment decision.
However, the U.S. Supreme Court reversed the Seventh Circuit Court of Appeals, and found that Proctor Hospital was liable for Straub’s discharge even though the actual decision-maker did not have any anti-military bias or other unlawful animus. The Court ruled that “if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Therefore, Proctor Hospital was liable under USERRA.
Avoiding Problems created by the Straub Decision Beyond the Anti-Military Context
- Before terminating any employee, the decision maker should take all steps to make certain that the information he or she is basing a decision on was not the product of animus prohibited by any law, not just the USERRA.
- Make certain to provide the employee, who the decision-maker(s) decided to terminate, with basic “due process” that includes a meaningful opportunity to respond to the accusations upon which they are being terminated, before any final decision, and document this.
- Train your supervisors in what constitutes impermissible discrimination in the workplace and how to legally discipline and terminate employment.
- Make certain that managers and supervisors (whose opinions are being relied on) understand that your organization will not tolerate unlawful discrimination and/or the exhibition of animus.
- III. Retaliation Claims under the Fair Labor Standards Act Do Not Have to Be in Writing to Trigger Employer Liability
Kevin Kasten orally complained to a company official at the Saint-Gobain Performance Plastics Corp. about the placement of time clocks, which Kasten claimed prevented employees from receiving credit for time spent “donning and doffing” work related protective gear. “Donning and doffing” is time spent by employees putting on protective gear at the start of a shift and removing the protective gear when the shift is over.
Kasten repeatedly called to the company’s attention the allegedly unlawful location of the time clock. Instead of correcting the problem, the company disciplined Kasten and later fired him. He filed a lawsuit for retaliation under the federal Fair Labor Standards Act (“FLSA”). In a related lawsuit the company was found to have violated the FLSA by placing time clocks in an unlawful location.
The Federal District Court dismissed the suit claiming that the FLSA anti-retaliation provision did not cover oral complaints. The U.S. Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. reversed the lower court’s ruling and held that the phrase “any complaint” as that phrase is used in the FLSA which forbids retaliation and discrimination against any employee because the employee has filed “any complaint”, was broad enough to include “oral complaints.”
Tips for Preventing Costly Retaliation Claims
- Take all claims that your organization is violating the law (whether written or orally made) seriously.
- Document any and all claims, whether written or orally made, that the company is violating the law.
- Immediately investigate all claims made by employees about terms and working conditions.
- Make certain that the results of your investigation are made known to the employee who reported the company’s potential violation of law.
- Never retaliate, in any manner, against an employee who reports that a company practice may be violating the law, even if the investigation shows that there are no violations of law.
- Employees who, under the guise of reporting unlawful activity, merely spread malicious and vicious lies about their fellow employees, can be appropriately warned and disciplined because such conduct has the potential for causing serious loss of moral and productivity.
IV. Do Companies Operating in Several States Really Want Local Juries and Judges Hearing Your Cases? – How Arbitration Agreements Protect These Employers
As more of our clients have developed operations in states other than California and even operate internationally, the most important employment issue that I have to consider is this: what happens if our California based client decides to terminate an employee working in Minnesota, Ohio, Texas New York, Seoul, South Korea, or Singapore? There has always been, and always will be, an intangible, non legal factor which I call the “hometown factor”.
The “hometown factor” includes the emotional biases and local prejudices that an out-of-state jury and/or judge can use to decide that an employee has been terminated in violation of law and therefore compensatory and punitive damages are appropriate. To minimize the “hometown factor”, we highly recommend that our clients who have developed operations in states other than California and who operate internationally, have newly hired employees, executives, and promoted employees sign and execute pre-dispute arbitration agreements based on the Federal Arbitration Act. Failure to prepare is preparing to fail.
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