Do You Need to Accommodate Your Vegan Employee? Court Rules "Maybe"

Posted by Alice O'Brien Berquist on February 07, 2013

Blog Pic - Carrots.jpgIn a recent case involving the discharge of a vegan employee for her refusal to be vaccinated for the flu, a federal district court judge in Ohio ruled that the employer may have violated Title VII, refusing to dismiss the former employee’s claim. In the past, the hospital employer had permitted the former employee to forgo the vaccination due to her claim that the vaccine contained animal products and would therefore be contrary to her religious and philosophical beliefs as a vegan. However, in 2010, the employer changed its practice and terminated the employee.

The court in Chenzira v. Cincinnati Children's Hosp. Med. Ctr., No. 11-cv-00917, (S.D. Ohio Dec. 27, 2012) rejected the employer’s argument that veganism does not qualify as a religion, but is merely the employee’s dietary preference or social philosophy. It reasoned that the former employee alleged a plausible claim that she subscribes to veganism “with a sincerity equating that of traditional religious views” and the matter should go to trial. The Supreme Court and the EEOC regulations and have interpreted “religious belief” broadly, giving protection to employees with moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views.

Bottom Line

The moral of the story? When your employee asks for an exception to a policy or requirement based on a “sincerely held belief,” consider whether it may be considered a religious belief subject to protection by Title VII.

Is Reassignment to Another Job a Required Accommodation under the ADA?

Posted by Grant T. Collins on September 14, 2012

Blog Pic - Application.jpgThe answer depends on where you live. For Minnesota employers, the Federal Eighth Circuit Court of Appeals ruled in a case entitled Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007), that an employer is not required to reassign a disabled person to a vacant position ahead of better qualified applicants.

The Equal Employment Opportunity Commission (EEOC) believes otherwise, having asserted way back in 1999 that “reassignment means that the employee gets the vacant position, if s/he is qualified for it.” Courts in other federal circuits, including those in Colorado (10th Circuit), D.C. (D.C. Circuit), and Florida (11th Circuit), have agreed with the EEOC’s reading of the ADA.

The Seventh Circuit in Chicago had previously sided with the Eighth Circuit’s view on this issue, explaining that the ADA merely requires a level playing field and is not “an affirmative action statute.”  However, last week they reversed course and ruled:

“[T]he ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.” EEOC v. United Airlines Inc., No. 11-1774 (Sept. 7, 2012).

The court was not persuaded by the company’s “disability neutral” policy of hiring only the best applicant for a vacant job. They found that while an employer probably does not have to disregard a full-fledged “seniority system” (e.g., a system established by a collective bargaining agreement), a simple rule or policy does not create an “automatic exemption” from an employer’s duty to accommodate under the ADA. Instead, the employer must be prepared to show that “fact-specific circumstances” particular to the employer’s employment system would create an undue hardship and render mandatory reassignment of a disabled employee into a vacant job unreasonable.

Bottom Line

Remember that this is a Seventh Circuit decision so it does not directly impact Minnesota employers. However, the EEOC’s success in getting the Seventh Circuit to flip flop almost certainly will spur them to seek the same from the Eighth Circuit. Therefore, while the law governing Minnesota says that we can remain “disability neutral” and not give preference to a disabled employee over more qualified applicants for a vacant job, we definitely can sense a possible change in the wind.

We will keep you up to date as this emerging issue continues to develop.

Supreme Court Throws Out Prospective Coach's $1 Million Verdict

Posted by Grant T. Collins on August 24, 2012

Univ. of Minn. Logo.jpgOn August 8, 2012, the University of Minnesota and its head basketball coach, Tubby Smith, scored a “buzzer beater” when the Minnesota Supreme Court threw out a $1 million jury verdict in favor of prospective assistant coach Jimmy Williams. Williams v. Smith, Nos. A10-1802 and A11-0567 (Minn. Aug. 8, 2012).

As we previously reported, Williams claimed that after Smith offered him an assistant coaching job, he quit his job at Oklahoma State and prepared to move to Minnesota, only to have Coach Smith rescind the job offer. The Minnesota Supreme Court ruled that because Smith had no duty of care to Williams, the negligent misrepresentation claim failed as a matter of law.

The court explained that the dealings between Smith and Williams consisted of negotiating potential government employment, which was not that type of relationship that is typically accorded legal protection. Specifically, there was no professional or fiduciary relationship between the two and Smith was not acting as an advisor to Williams. Thus, it did not matter that Smith failed to explain to Williams that Athletic Director Joel Maturi would actually make the final hiring decision, as Williams contended.

Moreover, the nature of this relationship “was that of two sophisticated business people, both watching out for their individual interest while negotiating at arm’s length.” Both, Smith and Williams had decades of coaching experience which included negotiating coaching contracts and exposure to a variety of hiring practices.

The court was, however, quick to criticize the University for how it handled the hiring. “[T]he manner in which [the University and Smith] treated Williams . . . was unfair and disappointing.” More importantly, the court specifically noted that even though Williams may not have a claim for negligent misrepresentation, a prospective employee like Williams could have a claim for intentional fraudulent misrepresentation.

Williams and his attorney are said to be giving strong consideration to further appeals.

Bottom Line

Even though the University and Smith ultimately came out on top, Minnesota employers would be best-served by continuing to follow our coaching tips for prospective employees:

  1. Be precise when communicating a job offer, disclosing any limitations or contingencies (e.g. background check, drug test).

  2. Send an offer letter or document the proposal in some other fashion to be sure that there is no misunderstanding about the terms.

  3. Know the limits of your authority. Don’t promise more than you can deliver and anticipate that applicants will rely on what you say.

 

Employers Should Think Twice before Logging In to an Applicant's Facebook Account

Posted by Grant T. Collins on March 30, 2012

Blog Pic - Computer.jpgAll of a sudden, the prospect of employers demanding Facebook passwords as part of the hiring process has burst onto the scene.  Cries of outrage have ensued - Facebook hinted at legal action, the ACLU is talking privacy-related lawsuits, state legislators (including one in Minnesota) are drafting bills in prohibiting the practice, and two U.S. Senators are calling for investigations by the Department of Justice and the Equal Employment Opportunity Commission.

Employers’ use of social networking sites (“SNS”) like Facebook or LinkedIn to screen applicants is nothing new.  One 2011 Reppler study even found that 91% of employers were doing it and that 69% of those eliminated at least one candidate based on information uncovered.

Just what are the risks of using SNS’s in the pre-employment arena?

Risks of Reviewing SNS Information

In general, anti-discrimination laws prevent employers from asking applicants about their marital status, pregnancy, future child bearing plans, religion, disability and other questions related to characteristics or traits protected by these laws.  Perusing an applicant’s Facebook page or Twitter site may allow the employer to obtain this prohibited information, and may give the rejected applicant reason to believe that it was this information that caused them to lose the job, not their lack of qualifications or poor interviewing skills.

Risks of Asking for Applicants’ Passwords

In particular, requesting an applicant’s SNS password may also violate the federal Stored Communication Act (“SCA”) or the Computer Fraud and Abuse Act (“CFAA”). The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, and the CFAA prohibits intentional access to a computer without authorization to obtain information.

Of course, neither of these statutes applies where the individual has consented to the access. Thus, the question becomes whether any such consent is truly voluntary or whether it was coerced by the threat of not getting the job if the consent is withheld.

In the case of Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. Sept. 25, 2009), for example, employees created an online chat group for venting frustrations about the employer and their managers. When the company learned of the site, one participating employee provided her log-in information under the belief that she was would have been penalized if she did not do so. This was enough for the jury to find that the access was not authorized and that it violated the SCA.

Bottom Line

While Pietrylo involved a current employee, the analysis seems just as compelling in the pre-hire context.  For this reason, until we have more certainty about the legalities of this practice, employers should be wary of requiring applicants to provide login credentials to secure social media websites and then using those credentials to access private information stored on those sites.

This does not mean that SNS’s are not valuable tools in an overall pre-employment procedure.  It just means that employers should be cautious about whether they wish to enter this legal gray area by requiring access to what is otherwise considered a private domain.

New OSHA Directive Regarding Workplace Violence

Posted by Brad R. Kolling on October 17, 2011

Blog Pic - Injury Report.jpgIn furtherance of their recognition that workplace violence is a safety issue within their jurisdiction, the Occupational Safety & Health Administration ("OSHA") recently issued a compliance directive to their staff regarding how to conduct inspections of episodes of work place violence, particularly in industries with high incidences of workplace violence.  The Directive, Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence, does not require every incident of work place violence to be investigated; rather, it provides guidance for field officers to decide whether to investigate and/or issue a citation.

OSHA approaches workplace violence in different ways according to the relationship between parties involved.

  • Type I violence involves violent criminal intent or acts by people who enter the workplace to commit a robbery or other crime.

  • Type II is directed at employees by customers, clients, patients, students, inmates or any others to whom the employer provides a service.

  • Type III is violence against co-workers, supervisors or managers by a current or former employee.

  • Type IV includes violence in the workplace by someone who does not work at the location, but is known to or has a relationship with an employee.

The Directive identifies industries that are identified as high risk for potential workplace violence.  Healthcare and social service settings are considered in this category, along with late night retail settings (e.g. convenience stores, liquor stores and gas stations).

OSHA’s Directive focuses on two primary questions: (1) Did the employer recognize potential hazards in the workplace?; and (2) Are there feasible means of preventing or minimizing such hazards?  The Directive encourages employers to conduct assessments of their risk for workplace violence at their jobsites and sets out steps that employers can take to minimize that risk.  In particular, employers are urged to be aware of potential workplace hazards because of specific past incidences, characteristics of the employer’s facility or general industry wide knowledge of the potential of workplace violence.  OSHA suggests that employers assess hazards on a periodic basis to determine whether safety mechanisms are effective.

Employers are encouraged to keep detailed records of workplace violence as well as workers’ compensation records, insurance reports, police reports, security reports and accident logs.

Bottom Line

Employers, especially those in identified “high risk” industries, should have well defined and maintained workplace violence prevention programs designed to minimize and eliminate the potential for workplace violence.  Employers should educate their employees on risk factors and prevention procedures to reduce the potential for workplace violence.

Court Holds Employer May Have Obligation to Assist Employee with Commute

Posted by Grant T. Collins on September 19, 2011

Blog Pic - Cummuters Cropped.jpgThe American’s with Disabilities Act (“ADA”) requires employers to provide reasonable accommodation to qualified individuals with disabilities, unless to do so would cause undue hardship.  The employer's accommodation obligation is not all encompassing, and is limited to those accommodations that are “job-related.”  Job-related accommodations are distinguished from "personal" accommodations that “assist[] the individual throughout his or her daily activities.”

With regard to an employee’s commute to and from work, the First, Third, Fourth and Sixth Federal Circuit Courts of Appeals have ruled that the employer's accommodation obligation does not include providing commuting assistance to employees since this is not part of the actual work environment.  

In addition, in a 2001 “Informal Guidance” letter from EEOC Associate Legal Counsel Peggy R. Mastroianni, the EEOC took the position that “it is the employee’s responsibility to arrange how s/he will get to and from work” and that the ADA does not require an employer to provide commuting assistance as a form of reasonable accommodation.

Nevertheless, last month, the Second Circuit Court of Appeals (based in New York) decided in Nixon-Tinkelman v. New York City Dep’t of Health and Mental Hygiene, No. 10-3317, 2011 WL 3489001 (2d Cir. Aug. 10, 2011), that an employer’s accommodation obligation may include providing an employee with certain commuting assistance.

In that case, the employee suffered from multiple physical disabilities.  After transferring to the Manhattan office, she requested a transfer back to the Queens office, which was closer to her home and her doctor.  The employee also requested several other transportation-related accommodations, including use of City-owned car, a parking permit and the ability to work from home for a few days every week.   She then sued the City when they denied these requests, but the trial court dismissed the case because commuting was outside  the scope of her work environment.

The Second Circuit disagreed, explaining that because job performance relies on attendance, the employer must consider measures that “assist in [the] employee’s commute.”  They then ordered the lower court to reconsider whether the employer could have reasonably accommodated the employee by (a) transferring her back to the Queens facility or another closer location, (b) allowing her to work from home, or (c) providing her with a City-owned car or parking permit.

Bottom Line

This decision represents an emerging split among the federal courts regarding the employer's duty to accommodate commuting and transportation needs.  The Eighth Circuit, in which Minnesota sits, has not yet ruled definitively on this issue and we will have to keep an eye on how this issue develops locally.  Ultimately, the matter may have to be resolved by the Supreme Court.  Until then, employers should give some thought to whether they can accommodate this sort of situation in an efficient and effective manner, just to stay on the safe side.

A Tribute to Harmon Killebrew

Posted by Dennis J. Merley on May 19, 2011

Harmon KillebrewHarmon Killebrew, perhaps Minnesota’s most mythic sports figure, passed away earlier this week at the age of 74.  Reading the multitude of tributes to his greatness both on the field and off, I began thinking of just how fortunate any employer would be to have an employee who embodied his qualities.  Here are five examples:

1.     Team Player

“When he hit his 500th homerun, he didn’t celebrate afterward because we lost the game.  He was more interested in the team than in individual achievements.” -- Former Twins teammate Jim “Mudcat” Grant (Interview on KFAN Radio, May 17).

2.     Ethical

“The Twins will remember Harmon for his many on-field contributions but importantly for the impeccable quality of his character, his great integrity and his compassion for everyone he encountered.” -- Twins Chief Executive Officer Jim Pohlad (Mpls.Star Tribune, May 17).

3.     Respected Mentor

“As a young player, he helped me a lot just in conversations on the bench talking about the game.  That was a time when a lot of veterans wouldn't talk to young guys.  But you could ask him about hitting.  You could ask him about being a professional, things like that.  He was an MVP, a guy who went to, what, 13 All-Star Games?  But he never acted like he was better than you were.” -- Former Royals teammate Frank White (Mpls.Star Tribune, May 17).

4.     Good Company Representative

“He's what you hope all your players, retired or active, should be.  He represented the sport brilliantly.” -- Baseball Commissioner Bud Selig (Mpls.Star Tribune, May 17).

5.     Great Co-worker

“When I first came here to Minnesota, I didn't speak one word of English.  He called me rookie . . . [h]e was a superstar.  He treated me the same way as if I was one of the big guys on the ballclub.  I never saw Killebrew put nobody down.” -- Former Twins teammate Tony Oliva (Mpls.Star Tribune, May 17).

What do you think you can do to increase your chances of hiring your own Harmon Killebrew?