Employment Law Alert : Gibbons P.C.: Labor Relations, Employment Contracts, Employee Benefits, & Wrongful Discharge Lawyers & Attorneys

A Family and Medical Leave Act (“FMLA”) plaintiff’s leave was proven fraudulent through her Facebook postings, resulting in summary judgment for her employer, dismissing her complaint. The Federal District Court for the Eastern District of Michigan concluded that the employer’s reason for her termination was legitimate and unrelated to her exercise of FMLA rights.

In Lineberry v. Richards, Plaintiff took a leave of absence based on excruciating pain she experienced in her lower back as certified by her physician. She applied for, and received approval from her employer to take, leave under the FMLA. During her leave, she went on vacation to Mexico. Plaintiff later posted on Facebook pictures of her vacation, including photographs showing her riding in a motorboat, lying on her side on a bed holding two bottles of beer in one hand, and holding her infant grandchildren, one in each arm, as she stood. She also posted details regarding certain activities she engaged in during her leave, including trips to Home Depot, watching her grandchildren and taking online classes. After Plaintiff’s co-workers revealed the Facebook postings to their employer, the employer questioned her in an investigation. The employer concluded that Plaintiff lied during the investigation about her use of a wheelchair while on leave.

Plaintiff sued her employer claiming its decision to terminate her employment interfered with her FMLA rights and retaliated against her for taking leave. On summary judgment, the Court reasoned that an employer’s interference with an employee’s FMLA rights does not violate the FMLA if it was motivated by a legitimate reason unrelated to the exercise of FMLA rights. In addition, the FMLA does not provide greater rights to an FMLA-eligible employee than to a non-FMLA-eligible employee. Here, Plaintiff was dishonest, and the employer terminated her employment after it uncovered the dishonesty. Accordingly, Plaintiff was not insulated from termination simply because she was on an FMLA-approved leave at the time.

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Pregnant employees who seek accommodations under the Americans with Disabilities Act (ADA) or the Pregnancy Discrimination Act (PDA) need not be offered special treatment, the Fourth Circuit ruled on January 9, 2013. The ADA prohibits discrimination against qualified individuals “on the basis of disability.” The PDA, enacted in 1978, amended Title VII of the Civil Rights Act of 1964 to specifically prohibit discrimination in employment “because of or on the basis of pregnancy, childbirth, or related medical conditions.”

In Young v. United Parcel Service, Inc., the United States Court of Appeals for the Fourth Circuit held that UPS did not have to afford a pregnant employee an accommodation relative to an essential job function. During her pregnancy, Young, a delivery truck driver, sought an accommodation of her doctor’s order not to lift packages over a specified weight, initially 20 pounds. UPS, however, included in the essential job functions for its drivers the ability to lift packages weighing up to 70 pounds and the ability to assist in moving packages of a weight up to 150 pounds. Young’s restrictions foreclosed her from such lifting.

However, UPS did afford accommodations, even for essential job functions, to certain other employees. First, the collective bargaining agreement between UPS and its employees required temporary alternate work assignments for those employees injured on the job. Second, employees who were disabled pursuant to the ADA might qualify for an alternate work arrangement. Finally, employees who had lost their Department of Transportation certification and were thus legally disqualified from driving would be offered a different assignment. But employees who did not fall within these categories and who sustained injuries or disabilities not attributable to the workplace were not afforded light duty or other temporary assignments; rather, those employees were not permitted to work if unable to perform essential job functions. Young, accordingly, was not permitted to work under her physician’s restrictions.

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In a recent decision, A.D.P. v. ExxonMobil Research and Engineering Company, the New Jersey Appellate Division held that an employer’s drug and alcohol policy requiring recovering alcoholics to submit to periodic testing to determine whether they have used alcohol since returning to work after undergoing rehabilitation constitutes handicap discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 (the “LAD”). The decision presumably applies as well to recovering drug addicts. Employers with alcohol and drug policies should immediately evaluate and, if necessary, modify them in light of the Court’s decision.

Background

Plaintiff was hired in 1978 and over the years received a number of promotions. After her husband died in 2004, she began to suffer from depression. In 2007, she voluntarily informed her employer she was an alcoholic and would be checking herself into a rehabilitation program for alcoholism and depression. After plaintiff completed the program, she was required by her employer, pursuant to its Alcohol and Drug Policy, to sign an “after care contract.” Under this contract, plaintiff agreed to maintain total abstinence from alcohol and drugs not prescribed by a physician and further agreed that she could be subject to periodic and unannounced alcohol and drug testing for a minimum of 2 years. A refusal to submit to testing could result in discipline, including termination of employment. Thereafter, plaintiff passed nine consecutive unannounced breathalyzer tests, but a tenth such test revealed blood alcohol concentration readings (BAC) of .047 and 043.3. (These readings were below the BAC threshold of 0.80 under New Jersey law for driving under the influence.) Plaintiff was terminated for violating the total abstinence provision of her “after care contract.”

Plaintiff brought suit against her former employer under the LAD, alleging that the company’s Alcohol and Drug Policy discriminated against her on the basis of her disability, i.e., her alcoholism. ExxonMobil moved for summary judgment on the grounds that its Alcohol and Drug Policy was reasonable. The motion judge granted the motion, and plaintiff appealed.

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Richard Zackin, along with Douglas Arone of Chubb & Son, will speak at the Law Seminars telebriefing on the "EEOC v. United Airlines: New Case Law for Filling Vacant Positions Under the ADA" on November 29 at 1:00 EST. This panel will analyze the court's reasoning, discuss the practical implications of the decision for employers, and address the issue of extended leaves of absence under the ADA for employees with disabilities.

Program information can be found here or by calling (800) 854-8009.

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Four months ago we reported on the decision of the United States Court of Appeals for the Seventh Circuit upholding United Airlines’ position in a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) that United did not violate the Americans with Disabilities Act (ADA) by its policy of filling vacant positions with the most qualified candidate even though another employee, unable to perform his own job because of a disability, had applied for the vacant position as a reasonable accommodation. The three-judge panel of the Seventh Circuit that issued that decision has now vacated its opinion and has decided the case in favor of the EEOC. The panel’s reversal of its position is not that surprising. The panel originally ruled in favor of United because it felt bound by a Seventh Circuit ruling in a similar case decided in 2000, EEOC v. Humiston-Keeling. The panel, however, questioned that earlier decision in light of the Supreme Court’s 2002 decision in US Airways, Inc. v. Barnett and thus recommended that the issue be considered by the court en banc (i.e. by the entire membership of the Seventh Circuit). The EEOC promptly moved for reconsideration en banc. Each member of the court expressed the view that EEOC v. Humiston-Keeling should be overruled and, in lieu of formally rehearing the case en banc, simply directed the original panel to vacate its decision and issue a new opinion.

The New Seventh Circuit Decision

The ADA expressly provides that a reasonable accommodation may include “reassignment to a vacant position.” Of course, the ADA also provides that an employer need not grant an accommodation request that would present an “undue hardship.” Under United’s policy, to receive priority consideration for placement in a vacant position as an accommodation, a disabled employee had to be at least tied in qualifications with the best applicant. Thus the issue before the Seventh Circuit was whether United would suffer undue hardship if it were required to forego its policy of not accommodating transfer requests by disabled employees when a more qualified candidate is available.

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The Gibbons Employment & Labor Department, and three of its attorneys, were among the 10 Gibbons practice areas and 20 individual attorneys ranked in the 2012 edition of the Chambers USA Guide to America’s Leading Lawyers for Business. Chambers annually rates the nation’s leading business lawyers and law firms through comprehensive interviews with top companies, attorneys, and business executives, plus extensive supplementary research.

The Chambers editorial and client testimonials included below highlight the Gibbons Employment & Labor Department and its attorneys:

Labor & Employment: This prestigious New Jersey firm has clear strength and expertise in the employment law arena. It has successfully defended multiple employers in race, age, and disability discrimination, retaliation and harassment claims over the past year. The team represents a range of clients in the pharmaceutical, financial and manufacturing sectors. Sources say: “The firm is very practical, to the point and thorough, and the fees are reasonable.”

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Are employers obligated, as a reasonable accommodation, to fill a vacant position with an employee whose disability renders him unable to perform his own job when other candidates for the vacant position are more qualified? The position of the Equal Employment Opportunity Commission (EEOC) that employers have that obligation under the Americans with Disabilities Act (ADA) was recently rejected by a three-judge panel of the Court of Appeals for the Seventh Circuit. But the panel took the unusual step of recommending that the issue be considered by the court en banc (i.e. by the entire membership of the Seventh Circuit). In the great majority of circuits, the issue remains unsettled, and employers must tread carefully when responding to such accommodation requests.

The Seventh Circuit’s Decision

In EEOC v. United Airlines, Inc., the EEOC brought suit under the ADA against United Airlines (United) on behalf of five United employees who were unable to continue in their current positions because of their disabilities and whose applications for vacant positions were rejected under United’s policy of requiring such employees to compete for vacant positions. The ADA expressly provides that a reasonable accommodation “may include . . . reassignment to a vacant position." 29 U.S.C.§ 12111(9)(B). Under United’s policy, to receive priority consideration for placement in a vacant position as an accommodation a disabled employee must be at least tied in qualifications with the best applicant. The District Court dismissed the EEOC’s action, ruling that it was bound by the Seventh Circuit’s 2000 decision in EEOC v. Humiston-Keeling, where the court had rejected the EEOC’s position that policies requiring disabled employees to compete for vacant positions violated the ADA.

In United Airlines, the EEOC asked the Seventh Circuit to reverse its decision in Humiston-Keeling in light of the Supreme Court’s subsequent decision in US Airways, Inc. v. Barnett in 2002. There, the Supreme Court held that ordinarily it would be an “undue hardship” under the ADA to require an employer to forego its well established seniority system in filling a vacant position in favor of a disabled employee. But seniority systems aside, the Court ruled that merely because an employer’s policy for filling vacancies is disability-neutral does not make “unreasonable” a disabled employee's accommodation request to fill a vacant position for which he is qualified. Thus, presumably, an employer’s policy of filling a vacant position with the most qualified employee is not by itself a valid basis on which to reject an accommodation request from a disabled employee qualified to fill the vacancy, and the employer would have to demonstrate why requiring it to disregard its policy would constitute an “undue hardship” under the circumstances.

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Last week, the New Jersey Supreme Court reiterated that lawyers who represent clients on a contingency basis in disputes brought under New Jersey laws that permit the recovery of attorneys’ fees can recover an additional fee “enhancement” pursuant to the framework the Court set forth nearly 20 years ago in Rendine v. Pantzer, 141 N.J. 292 (1995). The decision, Walker v. Guiffre, Case Nos. 72-10, 100-10 (N.J. Jan. 25, 2012), is noteworthy for businesses that all too frequently must weigh the risk of paying their opponents’ attorneys’ fees when deciding whether to settle disputes – particularly those companies that wishfully thought the reins on contingency fee enhancers might be tightened in light of two recent decisions by New Jersey appellate courts.

The New Jersey Appellate Division ruled in Walker v. Giuffre, 415 N.J. Super. 597 (App. Div. 2010) and Humphries v. Powder Mill Shopping Plaza, that the framework established in Rendine required modification to comply with the U.S. Supreme Court’s decision in Perdue v. Kenny A., 130 S. Ct. 1662 (2010). The Court in Perdue examined attorneys’ fee awards under federal laws and held, in part, that contingency fee enhancements were improper under federal fee-shifting statutes. The N.J. Supreme Court in Walker analyzed the New Jersey appellate decisions on a consolidated basis and explained that the U.S. Supreme Court decision in Perdue had no impact on the longstanding holding of Rendine. It reasoned that the N.J. Supreme Court already had considered the very arguments and considerations set forth in Perdue when it decided Rendine, including the conclusion that contingency fee enhancements are improper under federal fee-shifting statutes. In short, the framework set forth in Rendine, which permits contingency fee enhancements under New Jersey fee-shifting statutes, remains good law.

Among New Jersey laws that permit the recovery of attorneys’ fees and, therefore, the potential for a contingency fee enhancer, are the two laws most frequently implicated in New Jersey employment lawsuits: the New Jersey Conscientious Employee Protection Act (“CEPA”) and the New Jersey Law Against Discrimination (the “LAD”). A number of laws outside the employment context likewise place businesses on the defensive and permit the recovery of attorneys’ fees, including the New Jersey Consumer Fraud Act (“CFA”). (A listing of New Jersey statutes that permit fee-shifting can be found here.) Notably, the court’s decision in Walker arose from claims brought under the CFA and LAD.

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Joining a growing number of jurisdictions, including the Third and Ninth Circuit Courts of Appeal, the Court of Appeals for the Second Circuit, covering the states of New York, Connecticut and Vermont, has held that under certain circumstances, an employer may be required to assist disabled employees with their commute to work as a reasonable accommodation under both the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. The Court’s decision in Nixon-Tinkelman v. N.Y. Dep’t of Health & Mental Hygiene highlights an employer’s obligation to consider reasonable accommodations requested by employees with disability-related commuting problems.

Americans with Disability Act Background

The ADA, in essence, requires covered employers to provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” Under the statute, a “qualified individual” is someone with a disability who “with or without reasonable accommodation” can perform the essential functions of a particular job. “Disability,” in turn, is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of the individual.” Thus, in order to establish she is entitled to a reasonable accommodation, an individual must: (a) show that she has an impairment; (b) identify the life activity that she claims is limited by the impairment; and (c) prove that the limitation is substantial.

Factual History

The Nixon-Tinkelman Plaintiff, who suffers from a hearing impairment, cancer, heart problems, and asthma, claimed her employer discriminated against her on account of her disabilities when it failed to accommodate her commute to work. Plaintiff, who works and lives in Queens, NY, was temporarily reassigned to her employer’s Manhattan office for a period of nine months. Upon being notified of this transfer, Plaintiff requested that Defendants accommodate her disabilities by transferring her back to an office location closer to her home. Defendants denied this request and Plaintiff thereafter filed suit under the ADA and the Rehabilitation Act. Finding that “commuting falls outside the scope of [p]laintiff’s job, and is thereby not within the province of an employer’s obligations under the ADA and the Rehabilitation Act,” the District Court for the Southern District of New York granted summary judgment in favor of the Defendant.

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Amendments to the regulations implementing Title II of the Americans with Disabilities Act (ADA), 28 CFR 35.101 et seq., which applies to public entities, went into effect on March 15, 2011. A public entity is defined in the regulations as: “(1) Any state or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).” See 28 CFR 35.104. On the same date, amendments to the regulations implementing Title III of the ADA, 28 CFR 36.101 et seq., which applies to public accommodations (including private businesses that fall within one of twelve categories established by the statute) and commercial facilities also went into effect.

Key components of the amendments include:

• 2010 ADA Standards for Accessible Design: As of March 15, 2012, all new construction and alterations by public entities must comply with the 2010 ADA Standards for Accessible Design (“2010 Standards”). Between September 15, 2010 and March 15, 2012 public entities can choose between the requirements set forth in the ADA Standards for Accessible Design published in 1991 (“1991 Standards”), the Uniform Federal Accessibility Standards (“UFAS”), and the 2010 Standards. Covered entities that should have complied with the 1991 Standards or the UFAS during any new construction or alteration of facilities or elements, but have not done so by March 15, 2012, must comply with the 2010 Standards. A “safe harbor” provision provides that facilities built or altered in compliance with the 1991 Standards are not required to comply with the 2010 Standards until future alterations or renovations occur. The safe harbor provision, however, does not apply to those portions of existing facilities that are subject to new accessibility requirements which were not covered by the 1991 Standards. Those portions of existing facilities must be modified to the extent readily achievable to comply with the 2010 Standards.
• Ticketing: The regulations provide guidance on issues related to tickets, including the sale of tickets for a single event or series of events, identification of available accessible seating, ticket prices for accessible seating, the hold and release of accessible seating to non-disabled individuals, prevention of the fraudulent purchase of accessible seating, and the ability to purchase multiple tickets when buying accessible seating. A venue operator must now accommodate a disabled individual who purchased inaccessible seating on the secondary ticket market (which is a transfer of tickets after the covered entity’s initial sale of tickets) only when there is unsold accessible seating for the event.

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In holding that an employee with cancer in remission is “disabled” under the expanded definition of “disability” in the Americans with Disabilities Act Amendments Act (“ADAAA”), a federal court has signaled a major change in the way courts have considered cases involving diseases that are in remission. The case is among the first in the nation to interpret the extent to which the Act broadens the scope of the conditions that may qualify as a “disability.” Specifically, the court addressed that portion of the ADAAA that defines “disability” to include “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

Background

In Hoffman v. Carefirst of Fort Wayne Inc. d/b/a Advanced Healthcare, No. 1:09-CV-251 (N.D. Ind. Aug. 31, 2010), plaintiff, Stephen Hoffman, was diagnosed with Stage III Renal Carcinoma and underwent surgery to remove his left kidney. He returned to work a few months later without work restrictions from his doctors. For the ensuing year, Hoffman performed his normal job responsibilities as a service technician without incident. Thereafter, his employer acquired a contract with a new client that required all service technicians to work overtime, one night shift per week, and be on call on the weekends.

The very next day Hoffman provided a note from his doctor restricting him to 40 hours per week because of his cancer. Carefirst offered to allow him to work a 40-hour week out of its Fort Wayne, IN office but rejected his request to continue working a 40-hour week from his home office in Angola, IN. Hoffman refused to accept work at the Fort Wayne office because it would have added 2-3 uncompensated hours to his daily commute. He filed suit alleging the company improperly terminated his employment without offering a reasonable accommodation.

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