Did A Computer Reject Your Job Application? You May Have A Disability Discrimination Claim

 Some large employers have left their hiring, promotion, and firing decisions up to computers instead of real humans. And while that may be more efficient, it may also be causing them to reject disabled applicants. EEOC has issued a guidance on The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. The guidance provides examples of when computers can cause disability discrimination.

EEOC lists some types of employment screening tools that employer use which could cause disability discrimination. These include "resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test."

Per EEOC, the most common ways that an employer’s use of these decision-making tools could violate the ADA are:

The employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm. 

The employer relies on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, even though that individual is able to do the job with a reasonable accommodation. “Screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether.

The employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.

EEOC provides multiple examples of how these violations might occur:

• [A] job applicant who has limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard, trackpad, or other manual input device. Especially if the responses are timed, this kind of test will not accurately measure this particular applicant’s knowledge. In this situation, the employer would need to provide an accessible version of the test (for example, one in which the applicant is able to provide responses orally, rather than manually) as a reasonable accommodation, unless doing so would cause undue hardship. If it is not possible to make the test accessible, the ADA requires the employer to consider providing an alternative test of the applicant’s knowledge as a reasonable accommodation, barring undue hardship.
• An example of screen out might involve a chatbot, which is software designed to engage in communications online and through texts and emails. A chatbot might be programmed with a simple algorithm that rejects all applicants who, during the course of their “conversation” with the chatbot, indicate that they have significant gaps in their employment history. If a particular applicant had a gap in employment, and if the gap had been caused by a disability (for example, if the individual needed to stop working to undergo treatment), then the chatbot may function to screen out that person because of the disability.
• Another kind of screen out may occur if a person’s disability prevents the algorithmic decision-making tool from measuring what it is intended to measure. For example, video interviewing software that analyzes applicants’ speech patterns in order to reach conclusions about their ability to solve problems is not likely to score an applicant fairly if the applicant has a speech impediment that causes significant differences in speech patterns. If such an applicant is rejected because the applicant’s speech impediment resulted in a low or unacceptable rating, the applicant may effectively have been screened out because of the speech impediment.
• [S]ome employers rely on “gamified” tests, which use video games to measure abilities, personality traits, and other qualities, to assess applicants and employees. If a business requires a 90 percent score on a gamified assessment of memory, an applicant who is blind and therefore cannot play these particular games would not be able to score 90 percent on the assessment and would be rejected. But the applicant still might have a very good memory and be perfectly able to perform the essential functions of a job that requires a good memory.
• [S]ome pre-employment personality tests are designed to look for candidates who are similar to the employer’s most successful employees—employees who most likely work under conditions that are typical for that employer. Someone who has Posttraumatic Stress Disorder (“PTSD”) might be rated poorly by one of these tests if the test measures a trait that may be affected by that particular individual’s PTSD, such as the ability to ignore distractions. Even if the test is generally valid and accurately predicts that this individual would have difficulty handling distractions under typical working conditions, it might not accurately predict whether the individual still would experience those same difficulties under modified working conditions—specifically, conditions in which the employer provides required on-the-job reasonable accommodations such as a quiet workstation or permission to use noise-cancelling headphones. If such a person were to apply for the job and be screened out because of a low score on the distraction test, the screen out may be unlawful under the ADA. Some individuals who may test poorly in certain areas due to a medical condition may not even need a reasonable accommodation to perform a job successfully.
• [S]uppose that an employer uses an algorithm to evaluate its employees’ productivity, and the algorithm takes into account the employee’s average number of keystrokes per minute. If the employer does not inform its employees that it is using this algorithm, an employee who is blind or has a visual impairment and who uses voice recognition software instead of a keyboard may be rated poorly and lose out on a promotion or other job opportunity as a result. If the employer informs its employees that they will be assessed partly on the basis of keyboard usage, however, that same employee would know to request an alternative means of measuring productivity—perhaps one that takes into account the use of voice recognition software rather than keystrokes—as a reasonable accommodation.
• [I]f a personality test asks questions about optimism, and if someone with Major Depressive Disorder (“MDD”) answers those questions negatively and loses an employment opportunity as a result, the test may “screen out” the applicant because of MDD.

EEOC has some specific suggestions to help you assure you're being assessed fairly:

If you have a medical condition that you think might qualify as an ADA disability and that could negatively affect the results of an evaluation performed by algorithmic decision-making tools, you may want to begin by asking for details about the employer’s use of such tools to determine if it might pose any problems related to your disability. If so, you may want to ask for a reasonable accommodation that allows you to compete on equal footing with other applicants or employees.

For example, if an employer’s hiring process includes a test, you may wish to ask for an accessible format or an alternative test that measures your ability to do the job in a way that is not affected by your disability. To request a reasonable accommodation, you need to notify an employer representative or official (for example, someone in Human Resources) or, if the employer is contracting with a software vendor, the vendor’s representative or the employer, that you have a medical condition, and that you need something changed because of the medical condition to ensure that your abilities are evaluated accurately.

Note that if your disability and need for accommodation are not obvious or already known, you may be asked to submit some medical documentation in support of your request for accommodation. To find out more about asking for reasonable accommodations, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada.

If you only discover that an algorithmic decision-making tool poses a problem due to your disability after the evaluation process is underway, you should notify the employer or software vendor as soon as you are aware of the problem and ask to be evaluated in a way that accurately reflects your ability to do the job, with a reasonable accommodation if one is legally required.

If you have already received a poor rating generated by an employer’s use of an algorithmic decision-making tool, you should think about whether your health condition might have prevented you from achieving a higher rating. For example, might a disability have negatively affected the results of an assessment, or made it impossible for you to complete an assessment? If so, you could contact the employer or software vendor immediately, explain the disability-related problem, and ask to be reassessed using a different format or test, or to explain how you could perform at a high level despite your performance on the test.

If you have a disability and are getting rejected by computers, or if you are  being assessed by means that include computer algorithms, then you might consider contacting an employee-side employment attorney to find out about your rights.

What To Expect In #Employment Law In 2022

 If you are a regular reader, you've probably noticed that I haven't done any predictions in the past few years. Because how could anything have possibly been predicted? But employment law is becoming more predictable now, and I think it's time to take a deep breath and do my Cassandra bit. Here are my predictions for 2022:

1.    More pro-employee NLRB: We've already seen this with some very pro-employee, pro-union decisions coming down regarding Amazon, Starbucks, and other unionization attempts. As the year progresses, we'll see NLRB cracking down on employer retaliation and union busting efforts. We'll also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation.

2.    EEOC will re-energize: They were cut to the bone in budget and staffing under the last administration, so it's taking a bit for them to bounce back. They'll also focus on issues like sexual orientation that got pushed aside under the last administration. I hope they'll fully staff the mediation divisions, because those folks are really terrific at settling cases.

3.    Supremes go anti-employee: Unfortunately, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. Look for really pro-management decisions on the federal level.

4.    Paralysis on noncompetes: Even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there's little the agencies can do without legislation. Congress won't do anything. Neither will the Florida legislature. Maybe some pro-employee states will limit or ban noncompetes. Some have done it already. Will more follow?

5.    Sexual harassment crackdown: With President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. Where the military goes, usually goes the rest of the nation, so we should see some more crackdown on sexual harassers.

6.    COVID, COVID, COVID: The virus will continue to be an issue. OSHA will continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. Florida will continue to be the Wild West. 

7.    More unions: As NLRB becomes more employee-friendly, we'll see more unionization attempts. Once Amazon is forced to allow a union (and it will happen this year), employees of other workplaces previously thought impossible will begin efforts to unionize. Some will succeed. The Great Resignation has made employees more conscious of working conditions. They'll continue to fight to be treated fairly. Union busters will make a fortune this year as employers try to fight back.

8.    Disability discrimination: Now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'll see more disability discrimination cases. Employees who seek remote work as a reasonable accommodation will face resistance, but employers will lose the argument that granting the accommodation is a hardship. After all, they had a year or more of remote work very successfully. 

9.    Zoom: I don't know about you, but I love Zoom. Having to do a 2 - 3 hour round trip for a 5 minute hearing is a huge waste of resources. Judges like it because they have more control. For non-evidentiary hearings, Zoom will remain in many courtrooms. We'll also continue to see more Zoom depositions and mediations, which work very well on that platform. This will make attendance by employees much less onerous. They won't miss as much work, for one. In employment law, it will be a huge benefit. I find that employees are way more likely to settle in a Zoom mediation where they feel comfortable and more relaxed. Employers will also continue to utlize Zoom or similar platforms for meetings rather than having employees commute from remote locations. 

10.    Anti-employee laws: We'll see some extreme anti-employee laws in red states as the right wing pushes to be more and more extreme. Expect some laws attacking LGBT folks, abortion, marijuana, protests, and free speech. Some of these laws will give employers extra protection against lawsuits for terminating employees for their activities outside of work.

Well, that's about all I think I can predict for now. Let's see how I do. It's still crazy out there, but hopefully things will get a bit more normal as 2022 progresses.

Disability Discrimination and Accommodations During Coronavirus Pandemic

The good news is, disability discrimination is still illegal. I'm seeing employers laying off or firing employees because they think they'll be a liability or are at risk because of COVID-19. That's flatly illegal and wrong.

EEOC has issued a pandemic guidance that answers some of the many questions employers and employees have regarding the interplay between the Americans With Disabilities Act and coronavirus. Here are some answers to some common questions.

Is my employer allowed to take my temperature? Normally, no. It's a medical examination. The ADA prohibits employee disability-related inquiries or medical examinations unless they are both job-related and consistent with business necessity. EEOC says, "Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

• An employee’s ability to perform essential job functions will be impaired by a medical condition; or
• An employee will pose a direct threat due to a medical condition."

In EEOC's summary What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, they say: "Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever."

So short answer, yes, during this pandemic, they can take your temperature.

Can my employer ask about my symptoms?: Normally, they are not allowed to ask information that will lead to the disclosure of a disability. That changes during the pandemic. Based upon the above, yes, they can ask if you have any coronavirus symptoms.

I have a disability that makes me more likely to die or be hospitalized from COVID-19. Can I stay home? You could have your doctor fill out FMLA paperwork (regular, not the new emergency FMLA) and/or put in for a reasonable accommodation for your disability under the Americans With Disabilities Act. Both of those are still in effect and should apply to you.

If you stay home you may be entitled to paid sick time.

Federal, state and local governments are constantly issuing new rules on who has to stay home, which businesses are essential, and what benefits workers may get, so stay tuned and I'll try to update you on major changes.

Hey Florida Medical Marijuana Users - Gov. Scott Says You Can Be Fired

I've previously written about Florida's medical marijuana law saying nothing about protecting employees who are prescribed marijuana from discrimination. That was bad enough.

Now, it's worse.

Gov. Rick Scott recently signed into law a bill that very specifically says you can be fired for using medical marijuana.

The new law says that "medical use" does not include use, "In a qualified patient’s place of employment, except 228 when permitted by his or her employer."

It also provides:

(15) APPLICABILITY.—This section does not limit the ability 1678 of an employer to establish, continue, or enforce a drug-free 1679 workplace program or policy. This section does not require an 1680 employer to accommodate the medical use of marijuana in any 1681 workplace or any employee working while under the influence of 1682 marijuana. This section does not create a cause of action 1683 against an employer for wrongful discharge or discrimination. 1684 Marijuana, as defined in this section, is not reimbursable under 1685 chapter 440.

So if you thought your employer might actually have to accommodate your use of medical marijuana, think again. It will be in your bloodstream and urine for days, so you can't use it only at home and hope for the best.

The Florida legislature and our governor have, yet again, screwed employees over.

What Happens When The Feds Decide To Enforce Marijuana Laws? Preparing For The Trumpocalypse Part II

While four more states legalized marijuana for recreational use and four passed medical marijuana laws, meaning a majority of states now have some form of legal marijuana, it looks like the Trump administration may step up enforcement on the federal level. What does this mean for workers who need marijuana for disabilities? Nothing good.

So far, seven states have passed laws banning discrimination against medical marijuana users in the workplace. However, states that have laws prohibiting discrimination against employees for engaging in legal off duty activities have pretty much universally decided that, since marijuana is still illegal on the federal level, using it even with a prescription still isn't a legal off duty activity. The Americans With Disabilities Act still doesn't cover medical marijuana as a reasonable accommodation due to its illegality on the federal level.

While it has been looking like the feds were not going to enforce marijuana laws and therefore states with legalized marijuana were on their own to decide how to regulate pot use, it now looks like that may be reversed under Trump. This will embolden employers who want to crack down on employees who use medical marijuana.

If you think you can use marijuana in your state and not be fired, even with a prescription, you might want to wait and see how things fall out with the Trump administration.

Another issue with stepped up enforcement will be whether you can be fired for an arrest or a conviction. In most states you can. Plus, in most states employers can refuse to hire you with a record. This means that even in states that have laws against discriminating against medical marijuana users, you may be out of luck if you are arrested by the feds for your prescription.

Then, of course, there's the issue of prison, which obviously is a major concern. All of this is pretty terrible news for folks with cancer, multiple sclerosis, HIV, seizure disorders, Crohn's disease, epilepsy, concussion, Alzheimer's, bipolar disorder and other conditions that are helped by marijuana.

Bottom line is you'll have to wait and see what the Trump administration decides to do about marijuana before you get too comfortable using it for medical or recreational purposes.

Next time, vote better.

Do I Have To Disclose My Medical Condition To A Potential Employer?

An AOL Jobs reader asked me:

Your columns are extremely educational and full of information. Thank you from an appreciative reader. I may have missed this, but when applying for a job, is it necessary to disclose any medical conditions? I am a Diabetic Type 1, and use a pump, which could bulge through my clothes, though I take care to avoid that.

I was hired by a high-end jewelry store one month ago, and after working for 10 days, was told by HR, that I was "not a good fit." No other explanation. Needless to say, I was devastated. I am a University graduate with a B.A. and have always worked diligently. Does this business have a right to dismiss me?

This question addresses an important issue about disabilities. In general, you should not disclose any disabilities when applying for a job. The potential employer is not supposed to ask about any disability until it makes what is called a "conditional" job offer. For details on how the Americans With Disabilities Act works and who is covered, read my article 15 Things You Need To Know About Disability Discrimination.

I answer my reader's question and explain how a conditional job offer works and what questions a potential employer can ask in interviews in my latest AOL Jobs column.

Are You One Cold (Or Super Bowl Flu) Away From Being Fired?

It's cold and flu season, so you may be sick right now. It's likely you'll be sick at some point this year. Maybe you'll suffer from Super Bowl flu on Monday after too much partying on Sunday (or your boss will assume you partied too much if you call in sick Monday).

So what are your rights? Can you be fired for being out sick? What if you have a doctor's note? Connecticut and six cities (Jersey City, NJ; New York City; Portland, OR; San Francisco, CA; Seattle, WA; and Washington, DC) have paid sick leave laws. Nebraska and California legislators recently introduced bills to require employers to give paid sick leave. If you don't live in any of these places, you could possibly be out of luck.

My latest article at AOL Jobs discusses the legal rights you have if you call in sick, and what to do if you are told you'll be fired if you miss work. Don't forget those flu shots!

The Last Group Openly Insulted: 7 Ways to Prove Weight Discrimination

I wrote a piece in AOL Jobs called 7 Ways to Prove Weight Discrimination, which I'll excerpt below. But what I really want to talk about are the comments that showed up within a couple hours of the piece going up:

From jmasiulewicz:
"The only category of the ADA that can be voluntarily acquired. A disability by choice. Disgusting."

From rkeeeballs
"If it looks like a fat slob....it is !"

From mckdarren
"Yeah, let's encourage more lawsuits, Donna, instead of encouraging fat people to get control of their lives and health. You're a disgrace."

These jerks prove my point exactly. Overweight people are one of the last groups that Americans feel free to insult openly. Obesity has officially been declared a disease by the medical community. When will we stop treating the overweight like they are less than human?

Anyhow, rant over. Here is the beginning of the article.

In June, the American Medical Association declared that obesity is officially a disease. I've written in the past about weight discrimination and whether it's covered under the Americans With Disabilities Act. The big question is whether, now that disability has been declared a disease, the overweight will find more legal protection under discrimination laws.

Well, the lawsuits are already flying. One law firm reports that a client has been sued for weight discrimination, using the AMA's declaration in support of the claim that weight discrimination is now covered under the Americans With Disabilities Act. I'm sure there are others being filed around the country. 

So, how do you prove illegal weight discrimination? Here are 7 things you'll need to be able to prove if you want to sue for weight discrimination: 

You can read how at AOL Jobs.

Should I Tell My Boss About My Mental Illness? Why You Should Not (And Three Times You Should)

A reader at AOL Jobs recently asked:

I have 7 years tenure with my company with great reviews. My last 6 month review I had met expectations in every area. I am going through a traumatic personal situation. A new manager was hired in October, and she's the one who gave my last review. In January, I disclosed to her I had PTSD. After that she met with me a month later accused me of not working. Took me to regional manager. They said I was making excuses and were disappointed. She recently told me "maybe you can't do this job anymore". She then lied on coaching logs saying I could not do my work. I went out on leave for PTSD. The last day she had me meet her to give me my year review, which stated I was below expectations in every area. When I came back from leave I was put on a performance improvement plan. She continues to lie about my performance. Is there any way to prove discrimination? They put me on an improvement plan for not meeting certain goals, but my counterparts are having the same problems meeting goals. Other counterparts are having even worse issues and are not put on a performance improvement plan. Please advise.

Unfortunately, the stigma associated with any mental illness means most people are afraid to tell their coworkers or boss. When they do, it's all too common to be subjected to sudden criticisms that you never faced before. In this situation, the fact that you had all good reviews before you disclosed your mental illness and were only written up after you disclosed it could be strong evidence of disability discrimination. If you can prove that your performance didn't change, or that your coworkers are failing to meet the same goals as you and aren't being written up, then you should talk to an employment lawyer in your state or EEOC about bringing a disability discrimination claim against your employer.

 In honor of Mental Illness Awareness Week, my latest piece in AOL Jobs covers why you shouldn't disclose a mental illness or disorder to your employer, along with three times you should disclose it. Read more here.

No Flu Shot? That's a Firing

Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Legal Marijuana Use Can Still Get You Fired

Now that two states have legalized marijuana altogether and another has decided to allow it for medical purposes, you may be thinking you can finally have the occasional toke if you're in one of the lucky states. But don't bogart that joint just yet.

Marijuana use is still illegal under federal law. That includes medical marijuana use. Even if you have a disability that is protected under the Americans With Disabilities Act, the feds say too bad.

How does this affect your job?

If you use marijuana and your company finds out about it (or you're near someone who smokes and test positive due to secondhand smoke), you can still be fired.

Drug testing: In a recent case, the Washington Supreme Court ruled that their state law doesn't keep employers from drug testing employees and firing them for positive results. Same with a recent case in Michigan against Wal-Mart.

State laws against discrimination: Some states have made discrimination against medical marijuana users illegal. Connecticut, Arizona, Rhode Island, Maine, Colorado and New York all have prohibitions against workplace discrimination regarding medical marijuana users. Other states prohibit licensing and disciplinary boards from penalizing medical marijuana users. Even those states that prohibit discrimination based on marijuana use have exceptions to those legal protections, so be careful to make sure you are legally protected before you light up.

State off-duty activities laws: Some states prohibit termination/discrimination based upon an employee's lawful activities off-duty. These states include California and Colorado, so employers will need to be careful not to violate other related laws as marijuana becomes legal. Other states prohibit discrimination against employees for use of "lawful consumable products" such as tobacco, so the same laws will likely protect marijuana users as it becomes legal in those states.

Americans With Disabilities Act: Although many politicians pound tables yelling about "states' rights," the federal laws and courts still don't recognize the state laws making marijuana use legal. So far, courts have not recognized medical marijuana use as a reasonable accommodation under the Americans With Disabilities Act. More importantly, even though you might not end up in state prison, the feds can still prosecute you for marijuana, so be careful.

While the clear trend is to legalize marijuana, opening up a huge new tax base, eliminating the huge waste of resources spent on prosecuting marijuana cases, and giving relief to severely ill patients, the fact is that you may still be able to be fired for using marijuana even for medical purposes while not at work. The times are changing, but it will take a while for the employment laws to catch up with this important legal trend.

Can You Be Fired If You Are Sick After Your Vacation? Probably

I returned from a lovely three week trip to Italy with the souvenir that keeps on giving: pneumonia. It started out with sniffles. By Monday afternoon, I had a fever. Tuesday, I was coughing. On the Fourth, instead of enjoying barbecue and fireworks, I ended up at the urgent care. He counted back the days of incubation and thinks I got it somewhere on beautiful Lake Maggiore: maybe the public ferry or at a marketplace. Exposure to illness can easily happen when you travel: the airport, bus, train, or any public place can be full of contagion.

I asked the doctor if I could go to work Thursday and he said absolutely not. I was contagious and had to stay home. I couldn't go back until Monday. He said he'd write me a note.

Fortunately, I didn't need a note. I'm my own boss. And I'm not heartless enough to go in and contaminate my staff. But I wondered: what would happen to my clients if they came back from their vacations sick?

The answer is sad. They're probably fired or disciplined. I have seen this time and again. Many bosses are royally ticked if you return from your fun in the sun only to say you're too sick to work. Contagion be darned. They don't want to hear excuses. They want you in the office.

There are a few laws that may protect you if you're sick right after vacation. Here are some:

Family and Medical Leave Act: If your company has at least 50 employees within 75 miles of your office, and you've worked at least a year, you may be covered by FMLA. This means if you miss work for a serious medical condition requiring medical treatment, you must be restored to the same or an equivalent position when you return. It's a bit tricky, but you should notify HR as soon as you can if you think you qualify for FMLA. There are forms for your doctor to fill out. While the company is supposed to tell you if you report an illness that should be covered, many don't, either because they don't understand the law or don't care.

Americans With Disabilities Act: My pneumonia is probably not a covered disability under the ADA. But if you have a chronic respiratory condition or some other medical condition that the pneumonia exacerbates, then you might be protected under ADA.

Health Laws: If you work in an industry that has laws prohibiting you from working when you have a communicable illness (such as health care or food service) then you may be protected as a whistleblower if you refuse to violate the law and come in to work.

OSHA: If you are contagious, you might be protected under the OSH Act, which requires that employers provide a safe workplace. And if your company makes someone contagious come in, you may be entitled to refuse to work with them (but beware: the ability to refuse to work is limited, so contact OSHA before you take drastic measures).

My recommendation? Unless you're flat on your back or in the hospital after your vacation, go in sick. If you're contagious with something dangerous, such as swine flu, plague, or smallpox (as opposed to the common cold or flu), get a doctor's note and submit it to your supervisor and HR. If you are still ordered to come to work, go in, even if you have to go in on a stretcher. Don't give them an excuse to say you were insubordinate. (A well-placed cough or two in the jerky boss's direction might be called for in that case).

Even if your boss tells you to stay home, that doesn't mean they can't hold it against you later. Your review might say you had excessive absences or question your loyalty. If you aren't legally protected, there isn't much you can do except to try not to miss any more work for awhile (and don't put in for another vacation for a long time).

Employment Law Blog Carnival Mother’s Day Edition

This month’s Employment Law Blog Carnival has lots of posts with great career tips - so good, your mother might give them to you. Although Mother’s Day has passed, it’s never too late to take guidance from mom.

Here’s the best employment law advice a mother can give, in the best employment law blogs a mother could want.  

Don’t Talk To Strangers

Instead of going on reality shows to meet strangers in a misguided attempt to find love, you meet the best mates doing what you enjoy. In Jon Hyman’s post, The Bachelor as discrimination? Publicity stunt lawsuit undermines legitimate discrimination claims, things didn’t go so well looking for love in all the wrong places. If only they’d listened to mom . . .  

Behave Yourself

If you didn’t behave as well as mom wanted (or if your employees didn’t), you might want to read Daniel Schwartz’s post, EEOC Releases Important Guidance on Use of Criminal and Arrest Records By Employers and John Holmquist's post, Asking the question: the EEOC's enforcement guidance on arrests and convictions.

Don’t Make Rude Gestures

Adam Whitney’s post, You’re Damned if You Fire an Employee Who Gives You the Finger tells you what you can (and can’t) do with an employee who loses a finger or flips you the bird.

Work Out Your Problems

John Fullerton's post, FINRA Rule 13803: Compelling Arbitration Claims to be Filed in Court, tells about yet another way employers and employees may work out problems.

If You Can't Say Anything Nice, Don't Say Anything

Ari Rosenstein and Eric Meyer talk about the downsides of social media in Social Media: Useful Tool or Employment Pitfall? and Report: Employees share WAY more Facebook info than they think
If only the people in their posts had listened to Mom.

Study Hard

Sometimes, no matter how hard you study, you won't do well. That's because there's something wrong with the test. In Jacksonville Firefighter Litigation Shows Perils of Using Improperly Validated Tests, George Leonard tells how one test went terribly wrong, and advises employers how to make sure promotion and hiring tests won't be thrown out.

A great example of someone who should have studied harder is in Mark Toth's How to Hire If You Want to Get Fired. Learn what not to do when interviewing candidates in a hilarious what-not-to-do video. Personally, I hope you all interview like this. It will make my job on the employee side way easier.

Mind Your Own Business

Philip Miles and Jessica Miller-Merrill tell us about legislation to keep employers from snooping into employee's passwords in SNOPA - Proposed Federal Legislation on Employer Social Networking Password Requests and US Bill Would Make Employer Requests for Facebook Access Illegal.
MYOB, nosy employers.  

In Reviewing Private Social Media Accounts as a Candidate Screening Tool: Dangerous, even with Policies & Procedures, Shaun Reid warns of the dangers of not listening to mom's good advice about snooping.

Family Is The Most Important Thing

In 6 Steps to Avoid Family Responsibilities Discrimination Claims, Dawn Lomer advises employers how to avoid getting in trouble when employees put family first.

Don't Lie

Mom's advice is particularly good when your lie ruins things for everyone else. If you lie about your need for Family and Medical Leave, you make it harder for everyone who really needs it.  Robin Shea does a terrific analysis of when an employer can fire an employee for lying about FMLA leave in When can an employer fire an employee for medical leave fraud?

Don't Hit

Mom would not be proud of all the boss-directed violence in the game I talk about in my post, Top Reasons Why Kick The Boss Is One of the Top Apps. Or maybe she'd be glad you have an outlet instead of violence.

90% of Life is Showing Up

Okay, that wasn't mom, it was Woody Allen. But as a mom, I tell my kids this all the time. Randy Enochs tells us about the importance of showing up to work, even with a disability, in 9th Circuit Discusses "Attendance" as Essential Function of Job in ADA Claim. [Note to faithful readers - no, you aren't hallucinating. This is a late edition to the ELBC, but a very worthwhile one. Mom would say, "Better late than never." I'm glad Randy decided to show up at ELBC!]


Be an Overachiever

I saved Robert Fitzpatrick for last because he definitely did mom proud this week. He asked me to post three of his posts in ELBC. Bob, you're putting us all to shame. Here they are:

(1) Proposed FederalLegislation to Prohibit Employers from Requiring or Requesting Access to SocialMedia of Employees or Applicants

(2) No Settlement Negotiations Privilege

(3) USERRA and the Escalator Principle

There you have it: all my favorite employment law bloggers in one handy spot. If you read them all, not only will mom be pleased you did your homework, but you'll come away with lots of useful knowledge (unlike when I studied the law against perpetuities).

From everyone here at the Employment Law Blog Carnival, here's hoping you had a wonderful and happy Mother's Day! If you follow all the tips and advice in these blogs, you'll spend way less time in court and have more time to spend with mom.

Donate A Kidney To Your Boss? That’s A Firing

Debbie Stevens, gave her kidney to a man on the donor list so her boss could secure a match. Was she rewarded? Promoted. Nope. This is corporate America. You can be fired even if you literally give a piece of yourself for your job.

 Instead of rewarding her, the boss started pressuring her to come back to work even though she didn’t feel well and was still recovering. Once she got back, they took away her overtime, demoted her, and transferred her 50 miles from her home. She hired a lawyer to try to resolve the matter. The lawyer wrote a letter, and she was fired.

 I know I’ve talked about at-will employment and being able to legally fire employees for any reason or no reason at all. Does that mean you can be fired after you donate your kidney to your boss? Not necessarily. Here are just some of the claims she might have:  

Discrimination: If the employer failed to accommodate her recovery and then retaliated when she needed extended time off, she might have a claim under the Americans With Disabilities Act. Under that law, the employer must grant a reasonable accommodation, including extended leave, unless it can show an undue hardship. Retaliating against her after her return with a pay cut, demotion and transfer would also likely be a violation.  

Family and Medical Leave: If she was out for 12 weeks or less, then she’s likely entitled to recover under the Family and Medical Leave Act, which requires that she be restored to the same or an equivalent position once she returns from leave. Unless there were substantial cutbacks while she was gone, they’ll have a hard time arguing the position was equivalent. Even a distant transfer without a demotion is probably not considered equivalent. If she was out 12 weeks and one day or more, she’s probably out of luck on FMLA claims.  

Fraud: Did the boss promise continued employment or even favoritism if she gave of herself? Maybe. If that happened, she might claim fraud.  

Breach of contract: If the boss offered her anything specific, such as continued employment or a promotion, in exchange for the transplant, there might be a breach of contract claim. Although contracts in exchange for body parts may well be against public policy and unenforceable.

Personally, I think the courts should allow her to repossess. But since the recipient wasn’t involved in all this, she’s probably out of luck with that. In a perfect world, the court would have the power to make the company find her a replacement kidney to make her whole.

This isn’t even the worst firing I’ve ever heard of, but it’s up there. The employer should be ashamed, but I’m sure they’ll fall back on the old canard of at-will employment.

 To borrow from Joseph Welch (a victim of McCarthyism), I have to ask the employer what I hope the jury will ask: At long last, have you left no sense of decency?

Orange-Americans Unite: Stand Up For Yourselves!

           Did you hear the one about the 14 employees who were fired for wearing orange shirts? If you didn’t, you don’t live in the UK or Ghana or anywhere in the U.S., because the story made the international news. I think the story hit a chord with people everywhere because it was just so outrageous. You come into work one day, the boss is in a bad mood and fires you because she didn’t like your shirt that day.

            Management said they believed the shirts were a protest over working conditions, so they fired the employees involved. Some of the employees were quoted saying they didn’t intend to protest.

            What I thought was really interesting were the lawyers quoted who said, because Florida is an at-will state,  the employees could be fired for any reason. That's true some of the time. As I say in my upcoming book, employers can fire you because they didn't like your shoes that day. However I don’t agree with the assessment that these employees have no legal protection. Employees do have rights, even when they wear orange.

            I should confess at this point that I represent a group of the Orange-American employees who were fired. I won't go into all the underlying facts at this point. Let’s just say there’s more to the story.

            What I will do is discuss generally some circumstances where even Florida employees can’t be fired because their boss didn’t like their shirts:

            Religion: If the clothing has religious significance, the employer can’t fire employees for wearing it unless it can show serious concerns such as safety or security. Orange is a key color for the Protestant religion, so if the color was worn for religious reasons, firing because of wearing the shirts would be religious discrimination.

            Disability: If the clothing or color was worn due to a disability, such as a spine-adjusting device, then the employer would have to accommodate the disability unless it could show an undue hardship.

            Discrimination: If not all employees were fired for wearing orange, and the employees not fired were of a different race, age, sex, religion, national origin, etc. than the people fired, it could be discrimination.

            Concerted activity: The National Labor Relations Act (NLRA), which applies to most workplaces, not just unionized ones, says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Even if an employee didn’t engage in concerted activity, they are protected under the NLRA. An employer who fires them for suspicion of engaging in concerted activity is in violation of the law. The NLRB said in one case: “The discharge of 4 employees . . .because of [the employer’s] belief, albeit mistaken, that the[y] had engaged in protected concerted activities is an unfair labor practice which goes to the very heart of the Act”

            There have been lots of cases where firing employees because management didn’t like their shirt were found to be unlawful: where AT&T workers wore shirts that said “Inmate #” on the front and on the back said “Prisoner of AT$T”; where employees wore shirts protesting the use of retirees to bust unions and some employees wore shirts saying, “Union ‘til I retire, then scab in!” and “When I retire I will not scab. I will go fishing”; where employees wore shirts with the employer’s logo, cracked, saying, “I survived the Midstate Strike of 1971-1975-1979”; and many more. In each case, the employees’ shirts were concerted activity protected under the NLRA.

            I won’t comment on which of these circumstances apply to my Orange-American clients’ cases – at least, not yet. But I will say this: it could happen to you. We’re all Orange-Americans. Every American who works for a living and can be fired, from the janitor to the CEO. Every American who thinks our jobs shouldn’t be yanked away without good reason. Every American who wants to complain about working conditions but is afraid. Every American who can lose not only their jobs, but their health insurance, for any reason or no reason at all. Every American who can be fired for wearing a color their boss doesn’t like, and can then be told they aren’t allowed to work in their chosen profession for a year or two.

            American workers do have rights, even in Florida; you just don’t have many. But you do have some rights, if only you know how to exercise them. You also have the right to vote, and to petition your representatives to change the law. In this economy, shouldn’t an employer have more reason than an intense dislike of the color orange to fire you?

            Orange-Americans unite: stand up for yourselves!

Work for a Church or Religious School? You May Have No Civil Rights

The Supreme Court unanimously ruled last Wednesday on the so-called "ministerial exemption" to employment discrimination laws on Wednesday, finding that churches are allowed to discriminate. The exemption is something you won't find in Title VII or other discrimination laws, but is purely a creation of the courts.
While Title VII does have a limited exemption for religious organizations, it is narrow:

This subchapter shall not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

The Americans With Disabilities Act has a similar exemption:
 

Religious entities:

(1) In general

This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

In other words, Congress said that religious organizations can prefer to hire members of their own religion and comply with religious rules. That's it.

The Supreme Court broadened all religious organizations' rights to discriminate, saying . . . read more here in The Huffington Post.

15 Things You Need to Know About Disability Discrimination

If you have an impairment that substantially limits a major life activity, you might be covered under the Americans With Disabilities Act. Many people are confused about their rights and responsibilities if they have a covered disability, and whether or not they are covered.
Here are 15 things you need to know about disability discrimination

1. Covered impairment
Your impairment can be physical or mental. Homosexuality, pregnancy, weight, and height are not considered disabilities. (Pregnancy is covered as a separate type of discrimination.) The disability doesn't have to be permanent. Temporary impairments that. . . read more on AOL Jobs.

Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!