Tuesday, November 27, 2012

7th Circuit Holds Employer's Revealing Former Employee's Migraine Problems in Reference Check Does Not Violate ADA

Gary Messier was hired by a technology consulting agency to work as a temporary programmer for defendant Thrivent.  During the court of his employment with Thrivent, Messier missed work one day which prompted his supervisor, Thomas Brey, to email Messier to “inquire” about his absence. Late in the day, Messier responded that he had a severe migraine headache condition resulting from a major car accident in the 1980s.

After Messier quit his position with the temp agency and Thrivent, he experienced difficulty finding new employment which prompted him to use a service that acts as a potential employer for purposes of obtaining reference checks to see if he was being disparaged by his former employers.  These reference checks revealed that Thrivent was revealing information about Messier's migraine condition.  Specifically, Thrivent said:

"[Messier] has medical conditions where he gets migraines.  I had no issue with that.  But he would not call us.  It was the letting us know."

The EEOC found "reasonable cause" that discrimination occurred arguing that this reference from Thrivent violated the Americans with Disabilities Act's (ADA) requirement that employee medical information obtained from "medical examinations and inquiries" must be "treated as a confidential medical record."  42 U.S.C. sec 12112(d).

Summary judgment was granted by the district court holding that Thrivent learned of Messier's migraine condition outside the context of a medical examination or inquiry.  Therefore, the court held, the confidentiality provisions of 42 U.S.C. sec. 12112(d)(3) did not apply.  The Court of Appeals for the Seventh Circuit agreed and held Thrivent had no duty to treat its knowledge of Messier's migraine condition as a confidential medical record.

In making their argument, the EEOC first argued that Messier's email disclosure would be covered by 42 U.S.C. sec. 12112(d)(3)(B) if one or both of the following were true:

(1) Thrivent learned about Messier's migraine condition in the course of conducting a medical inquiry, or
(2) Thrivent learned about Messier's migraine condition in the course of conducting "inquiries into the ability of an employee to perform job-related functions" under 42 U.S.C. sec. 12112(d)(4)(B)

The EEOC conceded (1) did not apply and focused on (2) and argued that "inquiries" refers to all job-related inquiries and urged the Court to adopt its liberal interpretation of 42 U.S.C. sec. 12112(d) because it is "consistent with clear congressional intent."  However, this argument failed and the 7th Circuit held that 42 U.S.C. sec. 12112(d) has a "plain meaning" that cannot be ignored. 

The EEOC also pointed to precedent in other circuits but the 7th Circuit noted that in each case the EEOC cited, the employer already knew something was wrong with the employee before initiating interaction in order for that interaction to constitute a 42 U.S.C. sec. 12112(d)(4)(B) inquiry.  Thrivent, prior to Messier's email, had no knowledge of Messier's migraine issues and, therefore, not a medical inquiry because, for all they knew, Messier's "absence was just as likely due to a non-medical condition as it was due to a medical condition."

The case is EEOC v. Thrivent Financial for Lutherans, No. 11-2848 (Nov. 20, 2012).

Monday, November 26, 2012

Another FMLA Case Blown by an Employee's Facebook Page

I am a bit late in posting this as I have been utterly swamped in work but I wanted to make a point to highlight a case that received a lot of attention recently.  The case involves an employee who worked as a customer service representative at Advantage Health Physician Network, and, as the job title suggests, the employee's primary duties involved sitting at a desk answering calls.  The employee, Sara Jaszczyszyn, first missed work for the condition on August 31, and she returned to work with medical certification supporting the need for intermittent FMLA leave. The certification indicated that Sara likely would have four "flare ups" per month and that each flare up could last anywhere from a few hours to a few days.  When they occurred, Sara could not perform all of her job functions.  However, Sara began a pattern of what appeared to be FMLA abuse and what ultimately got her fired was her Facebook posts as viewed by coworkers, some of which covered for her while she was on FMLA leave.  

While Sara was on FMLA leave, she attended "Pulaski Days," a Polish heritage festival, where she spent eight hours socializing with friends.  After the festival, Sara posted on Facebook several pictures in which she is shown *enjoying* the festival.  Sara's co-workers weren't amused, since they "were covering for her" (whatever that means).  Apparently feeling betrayed because Sara was partying and they weren't, several of Sara's co-workers complained to their boss, who then viewed the Facebook pictures.  Sara was then fired, but not immediately.  Sara then filed FMLA retaliation and interference claims, which were ultimately dismissed.  

From FMLA Insights write-up of the case: 
After learning of the Facebook pics, the employer did not rush to judgment and terminate Sara on the spot.  Rather, it conducted a complete and exhaustive investigation of the facts at issue. Specifically, Advantage invited Sara back to work to discuss her leave of absence.  During the meeting, they: 1) confirmed her requests for a leave of absence through the present time; 2) confirmed with her the extent of her injuries that she believed prevented her from performing her job; 3) obtained her confirmation that she understood how seriously Advantage took fraud; 4) presented her with the Facebook pictures and explained why they thought these pictures were inconsistent with her statements supporting the need for leave and her certification, which stated that she was "completed incapacitated."   
Moreover, the employer wisely asked Sara to explain the apparent discrepancy between her "complete incapacitation" and the Facebook photos.  Sara's response?  She "was in pain at the festival and was just not showing it."  After that excuse failed miserably, her next response was telling.  You guessed it: silence.  

Starbucks Loses Another Major Tip Pooling Case, Must Pay $14 Million

Starbucks is appealing a court in Massachusett's award of $14 million to Starbucks baristas who worked for the coffee giant in Massachusetts from 2005 and 2011.  Starbucks lost its argument that shift supervisors should be classified as wait staff and partake in shared tips because they have no actual “managerial responsibility,” Justice News Flash reports.

From the JusticeNewsFlash.com article on the appeal:  
In January 2012, Judge Nathaniel Gorton made his final ruling, awarding the plaintiffs $7.5 million in damages, as well as prejudgment interest at a rate of 12 percent per annum. The plaintiffs were also awarded triple damages for more recent violations, totaling $6.6 million that were made mandatory by current state wage-and-hour claims, as amended in July 2008. 
Starbucks maintains that their shift supervisors are correctly classified as “wait staff,” because they only have “limited supervisory” tasks and no actual “managerial responsibility.” The coffeehouse giant also asserts that the ruling is contradictory to the law on tips in Massachusetts, which is to ensure that service employees are the ones that receive the tips from customers. Furthermore, they claim that the plaintiffs named in the lawsuit don’t actually represent the interests of the numerous former baristas that have been promoted to shift supervisors and who now reap the benefits of the current tip policy. 
In addition, Starbucks maintains that the court erred with the treble damages provision because the law allows punitive damages without showing that the punished conduct was reprehensible.
In typical employee misclassification cases employers do the opposite and claim employees who should be classified as hourly staff is management to skirt around paying overtime but in this case Starbucks did the opposite and claimed members of management were akin to hourly staff.

Wednesday, November 14, 2012

November Edition of the Employment Law Blog Carnival is Up!

This month's edition of the employment law blog carnival was hosted by the man who started it all, Attorney Eric B. Meyer and is available here for your reading pleasure.  Enjoy!

Sunday, November 11, 2012

Court Allows Plaintiff to Use Statistics to Help Rebut Employer's Legitimate Non-Discriminatory Reason

In an interesting case out of a New York County Supreme Court case (remember that in New York the Supreme Court is the primary civil court), a plaintiff was allowed to rely on statistics regarding favorable treatment of African-Americans to help prove his national origin discrimination claim.  

The case involved an Assistant Principal of a New York public high school, who was of Hispanic descent, claimed that his most recent favorable positive performance evaluation ("satisfactory") was down-graded (to "unsatisfactory"), that he was not retained under his five-year probationary service agreement, and that he was fired after four years of exemplary service, all by an African-American principal who came to the school shortly before his discharge.  The new principal asserted that the actions were due to the plaintiff's unsatisfactory work record and violation of the conflicts of interest policy, accusations the Assistant Principal denied.  

The New York Court allowed the case to proceed against the employer partially because of statistical evidence offered by the plaintiff:
Before the new principal's arrival, four of the 11 Assistant Principals at the high school were not African-American (three Latinos, one West Indian, and one Caucasian).  Under the new regime, all four non-African-Americans were let go and replaced by African-Americans.  Likewise, all the African-American Assistant Principals were retained or replaced by other African-Americans.  This changed the percentage of African-American Assistant Principals from 64% to 100%.
I applaud the court for being open to considering evidence in all forms and as the famous saying goes, "numbers don't lie."  

The case is Dominguez v. Dept. of Educ., 2012 NY Slip Op 51899(U) (N.Y. Sup. Ct., New York County, Sept. 28, 2012).  

(Hat tip: Attorney Ted Olsen's article on JD Supra.) 

Monday, November 5, 2012

Employer Takes Over Employee's LinkedIn Account, Loses Computer Fraud and Abuse Act Claim

A case that has gained attention as of late involves an employee who filed suit in federal court citing both state and federal law--namely, the Computer Fraud and Abuse Act (CFAA)--over the ownership of the employee's LinkedIn account created during the scope of her employment.  A District Court in Pennsylvania entered judgment in favor of the employer holding that the employee's allegations of the loss of potential business opportunities, goodwill, and/or interference with customers are not cognizable losses under the CFAA, even though it was undisputed that the employee lost control of the LinkedIn account after she was terminated. 

The facts are a bit odd and show the importance of keeping your social media completely private, even on LinkedIn even if you think it may help advance your career.  From the brief article on the case: 

This dispute involved Edcomm, a banking education company, and its former president and majority shareholder, Dr. Linda Eagle.  During Dr. Eagle's tenure, Edcomm's chief executive officer recommended that all employees maintain a LinkedIn account.  The company generally followed a policy that once an employee left the company, Edcomm effectively owned the account and could "mine" the information and incoming traffic. 
After Edcomm terminated her employment, Dr. Eagle unsuccessfully attempted to access the LinkedIn account that she developed during her employment.  The company had changed Dr. Eagle's password so that she would no longer have access and changed her profile so that her replacement's name and picture appeared instead of Dr. Eagle's.  After being unable to access the account from late June 2011 through July 12, 2011, Dr. Eagle ultimately managed to regain access but continued to be unable to receive messages for a substantial period of time thereafter.
Dr. Eagle sued Edcomm for violations of the CFAA, the Lanham Act, and several claims arising under Pennsylvania state law including invasion of privacy, misappropriation of publicity, identity theft, conversion, tortious interference with contract, civil conspiracy, and civil aiding and abetting.  Dr. Eagle claimed she suffered damages because she was unable to access her account and receive communications from clients and prospective clients. 
While the Court granted summary judgment on the employee's CFAA claim, it has allowed the state law claims to advance which may provide some protection for employees moving forward.  Very interesting case to continue watching.

Sunday, November 4, 2012

Employee Rights on Election Day

I've written about this in the past and am unaware of any changes in the law so, to summarize again this year, employees may vote this Tuesday and employers must follow these rules per Wis. Stat. sec. 6.76:

(1) Any person entitled to vote at an election is entitled to be absent from work while the polls are open for a period not to exceed 3 successive hours to vote. The elector shall notify the affected employer before election day of the intended absence. The employer may designate the time of day for the absence.
(2) No penalty, other than a deduction for time lost, may be imposed upon an elector by his or her employer by reason of the absence authorized by this section.
(3) This section applies to all employers including the state and all political subdivisions of the state and their employees, but does not affect the employees' right to holidays existing on June 28, 1945, or established after that date.
So, get out and vote this Tuesday!