Archive for the ‘Disability Liability’ Category

Say what? When I advise employers on termination issues, I am most comfortable approving a termination when the employee has committed serious misconduct, such as stealing from the company. However, even though Massachusetts is an at-will state, and employers usually are on safe grounds to fire an employee who has stolen from the company, there are exceptions.

Take the recent case brought by the EEOC against Walgreens. Walgreens fired a cashier who opened and ate a $1.39 bag of potato chips because she was suffering from low blood sugar, on account of her diabetes. The case was brought under the Americans with Disabilities Act. Walgreens apparently considered the employee’s actions to be stealing from the company. It is not reported whether there was an investigation prior to the termination. Some reports suggest that the employee planned to or did pay for the chips after the fact.

I won’t comment on who should win this claim without having more facts. What Walgreens should have done was to conduct an investigation, including especially questioning the employee. Given that she was reportedly an 18-year employee with no disciplinary problems, maybe Walgreens should have given her the benefit of the doubt. If she did plan to pay, then allowing her to grab the chips and eating them (and pay for them later) would likely be considered a reasonable accommodation.

In a written statement, the EEOC wrote that “[a]ccommodating [a] disability does not have to be expensive, but it may require an employer to be flexible and open-minded.” That is good advice, when you have an employee who may be considered disabled (which is now very broadly defined), you should always have reasonable accommodations in the back of your mind.

Another situation where you could be held liable for firing an employee for stealing is the case of disparate treatment. If, for example, you do not fire white employees who are caught stealing, but do fire a black employee who has committed the same offense, you could be held liable for racial discrimination. This was the theory that a plaintiff used in Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122 (1997).

Although the employee lost (after what must have been an expensive legal battle all the way to the highest court in Massachusetts) on factual grounds, the legal theory was sound. Employers must be careful to be consistent with their policies, especially in matters of discipline. Of course, this advice is contradictory to the lesson in the Walgreen’s case. As you will read elsewhere in my blog, sometimes disabled employees have to be treated differently. This fits in nicely with my theme – sometimes you’re damned if you do; damned if you don’t.

The takeaway here is that, maybe, you can never be sure that a termination will not lead to an expensive lawsuit. If you cannot fire an employee after you have determined that they were stealing with the company, when can you fire them? I’m not trying to be alarmist. The vast majority of employees who have allegedly stolen from the company can be safely fired. But, as you can see, that’s not always the case. If you do have any questions on whether you can terminate, and how to do it, call me at 617.338.7000.

By Adam P. Whitney, Esq.

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If we are being honest we must admit that many of us will eventually get “too old” to do our jobs. This won’t happen to everyone. I have had cases against lawyers in their 90’s who were quite capable. I imagine that Jack LaLanne would have been a fine lifeguard or firefighter even in his 80’s. But most of us could not do those jobs in our 80’s.

Don’t take this post the wrong way; I’m strongly against age discrimination. Although I usually work for employers, I’ve successfully represented older workers who have been real victims of age discrimination. It’s ugly. And the resulting emotional and economic harm to an older worker can be devastating. While racial discrimination is often subtle and covert, age discrimination can be blatant and overt.

This post is aimed at the very real situation of a good employer having an elderly worker who can no longer perform all of the job duties. In this economy with people unable to retire, and because baby boomers are aging, this is a situation that frequently repeats itself. Take this hypothetical “damned if you do; damned if you don’t” situation, which is a mixture of real cases I’ve worked on. Say an employer has a much older worker; elderly, in fact. Far from wanting to discriminate, the company feels great affection for the employee, and has kept him much longer than his performance warrants. Let’s say that the public’s or the client’s safety depends on the employee performing his job duties.

What is the employer to do? By letting the employee slide for years, the employer is in a weak position because it has no record of poor performance. If the employer fires the employee, it exposes itself to an age discrimination claim. If the employer does not fire the employee, clients may be dissatisfied, or someone could be injured. Damned if you do; damned if you don’t. There may also be physical issues that make the employee qualified as disabled under state and federal law, requiring that you provide reasonable accommodations before termination.

There’s no magic bullet to this situation, but if it is a safety issue, you have to err on the side of safety. But it is clear that employers must rely on objective criteria. Well-drafted and honest job descriptions, which are enforced for all employees equally, are your first line of defense. Performance evaluations are your second line of defense. If you routinely evaluate, or even test, all of your employees in an equal, objective, unbiased fashion, and record the evaluations, you will be in a better position (You have to be careful that the evaluations or tests themselves are not biased, which could lead to liability). Also, you should have objective and equal responses to the evaluations/testing. You cannot let some employees slide, because you have then set a precedent that will allow an employee to show bias if you enforce your standards against only some of your employees. Document everything when it happens. Employment lawyers have a saying, “if it’s not in writing, it didn’t happen.”

This will cost you time and money, I get that. But don’t look at it as a waste of time. In addition to helping you avoid liability, won’t it also help you to serve your customers? Won’t it reinforce to your workers that the job description is important and that you take it seriously? Won’t it help you to revise your job descriptions if they are not accurate? Won’t you discover where you need more training? Won’t it help you get valuable feedback from your employees? Won’t you weed out underperforming workers and strengthen your business? Only you can answer these questions, but I’d be surprised if you said “no” to all of them. Maybe this isn’t feasible for every company and every position, but if you put your mind to it, you should be able to come up with some objective ways to evaluate employees.

The other advice here is to be honest with your employees. Of course, don’t say “you’re too old” for the job. Don’t suggest that the employee retire. I said honest, not suicidal. In fact, age really isn’t the issue, in spite of what I wrote above. The issue is the individual’s performance. Some people can suffer early onset dementia at age 60. Some people have their wits about them in their 90’s.

Make it about their performance. Don’t try to soften the blow and tell the employee that you’re eliminating the position when you are not. Don’t tell employees that you are moving in a new direction, or seeking some “new blood,” which is code for hiring younger workers. Just be factual and rely on performance issues. It will still hurt the employee, and they may not want to accept that they cannot perform. But deep down, they will know that you are right. I think it is easier to accept that we all get older and lose some of our abilities than to accept that your employer rejected you just because you are older. If you make an employee feel the latter, you may well buy yourself an expensive lawsuit.

If you have any questions on how to deal with an underperforming worker, call me at 617.338.7000.

By Adam P. Whitney

It’s all fun and games until someone files a lawsuit. That’s surely what one Massachusetts employer thought. In that recent case, decided before the Department of Industrial Accidents, the employee reportedly asked her boss, Mr. Grillo, for health insurance. She alleges that he agreed to provide health insurance if the employee would agree to wear a chicken head costume. The chicken head in question was apparently part of a running joke in the office. The employee refused, and was allegedly given other absurd options, such as e-mailing all of her friends that Mr. Grillo is god, or to come to work with red lipstick and to kiss another employee’s bald head. The case is reported at the DIA as In Re: Cappello, (DIA) (Board Nos. 026109-07 and 022705-07) (March 23, 2011).
In this case, the DIA granted the employee worker’s compensation benefits for emotional injury suffered at work. The claim could even be doubled if the DIA determines that the employee committed serious and willful misconduct.
The employee’s psychiatrist concluded that Mr. Grillo’s alleged harassment was the predominant contributing cause of the employee’s adjustment disorder and her major depressive disorder.
Although this case was brought under worker’s compensation, it has serious implications for other employment laws. For example, asking a female employee to wear red lipstick could easily be construed to be sexual harassment. Additionally, the employee almost certainly, at some point, became protected under the Americans with Disabilities Act and its Massachusetts counterpart, G.L. c. 151B. The employer could have created exposure to itself under these and other theories by harassing the employee and failing to accommodate the employee.
It’s difficult to not allow employees to have a sense of humor. Everyone needs a good laugh now and then, even in the workplace. But employers cannot assume that all employees will appreciate being the butt of jokes. Some employees will be more sensitive than others. Employers better be aware of this and either cease all horseplay, or make certain that every employee involved is a willing participant. Will we see horseplay contracts? This is in reference to “love contracts” which some employers require employees to sign when they are dating one another. I doubt that we will, but you never know.

By Adam P. Whitney, 617.338.7000.

As a recent decision from the Massachusetts Commission Against Discrimination (“MCAD”) shows, allowing an unwelcome sexualized atmosphere at the workplace can be very costly. And firing an employee who complains of sexual harassment is downright foolhardy, as shown in MCAD, et al. v. Sleek, Inc., et al. (Docket No. 06-BEM-01275) (March 15, 2011). A copy of the decision is attached.

In this case, the Complainant, a male, went to work at the all female Sleek Medspa in Burlington. He was soon exposed (no pun intended) to sexualized comments and joking about clients’ genitals and other body parts (the spa did a lot of body waxing), and an incident of a female superior flashing her breasts or bra to the owner of the company over an internet camera (the Complainant saw only her back). The sexualized comments and joking are really not that surprising, and was likely how the aestheticians blew off steam. It really doesn’t sound that bad, but the Complainant found it unprofessional and was very sensitive to it.

If that were all there was to the story, it would hardly be notable, and may not have resulted in litigation. When the Complainant complained about the behavior, he was promptly fired. This was a big no-no. The Company took a marginal sexual harassment complaint that could have and should have been addressed by cleaning up the atmosphere, and turned it into a significant loss for the Company.

How significant? The MCAD awarded the Complainant $150,000 for emotional distress alone. The emotional distress was not so much from the original incidents, but from the termination and everything that went along with that. The Complainant had been (correctly) advised by an attorney that complaining of a sexually hostile work environment was protected, and that he could not be fired. The company stupidly fired him the next day for a reason that was clearly pretextual. He was devastated by the termination and the resultant loss of income.

The Complainant also recovered over $41,000 in lost wages. And the MCAD fined the Company owner $50,000 because he and/or his companies were repeat offenders of employment discrimination laws. That’s over $241,000, without including interest and costs. Interest on the $191,000 owed to the Complainant is significant, at 12% per annum from the date of filing in 2006. By my math, it adds almost 60%, or roughly $110,000. We’re up to $341,000.

And don’t forget that the company paid its own attorneys, which surely added tens of thousands more to the loss. Let’s conservatively call it a $350,000 loss for a dumb termination that any good lawyer would have vigorously counseled against had they been called. (The company was lucky that the MCAD provided counsel for the Complainant; had he hired private counsel, the Company would have been on the hook for tens of thousands for the Complainant’s legal fees).

Don’t make a $350,000 mistake like this company did. If you have any questions about sexual harassment, a hostile work environment, or terminating an employee, call me at 617.338.7000. By Adam P. Whitney.
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Most employers I have spoken with mistakenly believe that any employee can be tested for drugs. Nothing is that easy, especially in Massachusetts. If you want to minimize exposure (to legal liability, that is), you had better have a policy that is narrowly tailored and carefully crafted.

That is because Massachusetts is tougher on employers in this regard than other states are. In Massachusetts, an overly broad drug testing policy will subject the employer to liability for invasion of privacy and, if an employee is terminated for refusing to be tested, possibly for wrongful discharge. The Massachusetts Supreme Judicial Court ruled that peeing into a cup is a private act (yes, judges think about such things) and that your medical information is also private.

This is another area of the law where the employer may have to treat individual employees differently. For example, an employer would be justified to test employees who drive a company vehicle for many miles per year (under certain federal statutes, such as the trucking industry, drug testing can be mandatory; this trumps state law). Also, an employer would be justified testing employees where their jobs are such that being under the influence of drugs would pose a danger to themselves and/or the public. But for other employees who just sit in an office, their privacy interests may outweigh the employer’s interest in a drug-free workplace.

There are several other factors to consider when drafting a drug testing policy. Thus, an employer must retain a knowledgeable employment lawyer. The dollars that you spend on the drafting end could save you tens of thousands for what you might spend on the litigation end if you are sued and have a poor policy. Self-serving? Definitely. But in reality, most employers decide against drug testing after they learn the legal issues involved.

By Adam P. Whitney, 617.338.7000.

The usual advice to avoid discrimination claims is to treat everyone the same. If only life were so easy. For disabled employees, you may in fact have an obligation to treat them differently.

The American with Disabilities Act (the “ADA”) and its state counterpart are a source of continual confusion and consternation for Massachusetts employers. The rules are confusing, even for lawyers. A recent case from the Eighth Circuit Court of Appeals, EEOC v. Convergys Customer Management Group, is illustrative of how an employer can make a mistake. Though not binding on any Massachusetts state or Federal Court, the ruling could be followed by courts here.

In that case, the employer, Convergys, was ruled to be in violation of the ADA when it failed to accommodate and later fired a disabled employee. The employee, who was wheelchair-bound, was often late because all of the handicapped parking was filled. He was also late returning from lunch because the layout of the office made it more time consuming for him to find an open work station (he worked as a call center representative). He explained his difficulties to his supervisors and even suggested some accommodations. The employer refused to grant any accommodations and later fired him. A jury awarded $100,000 in emotional distress damages and over $14,000 in lost wages. The Appeals Court upheld the verdict and faulted the employer for not engaging in the “interactive process” required under the ADA (the ADA is applicable to employers of 15 or more everywhere in the country; Massachusetts has a similar law applicable to employers of 6 or more employees).

The employer’s damages – and surely a great amount of legal fees and costs – could have been avoided with a five minute call to a good employment lawyer. Any good employment lawyer would have explained to the employer its duty to engage in an interactive process and to provide reasonable accommodations. Massachusetts law is particularly strict on the interactive process, so the same type of ruling could be expected here. The employer may have taken comfort in treating the employee like everyone else. But, he was not like everyone else and what makes him different is what is called a protective class.

A similar case came out of the Eleventh Circuit Court of Appeals, Holly v. Clairson Industries, L.L.C. Holly was also a wheelchair-bound employee whose employer had a strict punctuality rule. The employer tried to enforce a strict company policy which stated that disabled employees were “not exempt” from the punctuality rule. The employee was sometimes a few minutes late due to the obstructions in the break room, such as lunch tables being in his way. He was a 17-year exemplary employee and made up any missed time by working through breaks or working late. The trial court sided with the employer, but the Appeals Court reversed. It ruled that the employer could not exempt itself from the ADA by treating everyone the same. In fact, the employee’s job was not time sensitive and precise punctuality did not matter. The case was remanded to the trial court for trial.

The Holly case raises an important point: disabled employees sometimes have to be treated differently than other employees. Employers have to engage in an interactive process whenever an employee needs an accommodation to do his job. The accommodation must be provided if it is a reasonable accommodation. Reasonable accommodations can include many things, such as, as we have seen above, allowing an employee to be late. The more important lesson is to call your employment lawyer when you have any question about these issues and especially before disciplining or terminating a disabled person that may need accommodations.

These are just two of thousands of examples where disabled employees need to be treated differently. This can also apply to emotional-type disabilities, like bipolar disorder. You’ll be damned with expensive legal fees and perhaps a large verdict if you do not carefully consider these issues.

By Adam P. Whitney, 617.338.7000.