Giving Thanks

Every manager should read this article about the value of showing people that their efforts are appreciated.  It costs the company nothing, reinforces the team dynamic, and generally helps humanize the workplace.  None of this is a bad thing.

Happy Thanksgiving.

When Disabilities Attack: Accommodating Bad Conduct

The biggest problem that I encounter with Americans with Disabilities Act cases is that they are so fact specific that it’s often difficult to craft hard and fast rules for employers to follow that can prevent or limit exposure under the law. Many of these cases revolve around the specific essential elements of an individual’s job, and how the disability effects the performance of those essential elements. ADA cases become even more problematic when the essential job element is something that is not specified in a job description, but rather more of a generally accepted requirement for any position, such as civil conduct, and an ability to work with others.


So this recent Second Circuit decision is instructive on several levels, because it deals with a case in which the disabling condition created a conduct problem for the covered entity. It’s not an employment case per se, but the Second Circuit makes it very clear that the principles here apply to employment cases as well.

The plaintiff worked as a volunteer janitor and housekeeper in a nursing home. He had a neuro- developmental disorder that the Court characterized as “autism spectrum disorder”. After a series of complaints from female staff members that the plaintiff was acting inappropriately with them, and following the plaintiff’s somewhat bizarre statements during the nursing home’s investigation, the facility eliminated him from the volunteer program and barred him from entering its premises.

The plaintiff then filed a lawsuit under Title II of the ADA which requires a public entity to accommodate disabled individuals to allow participation in services, programs or activities provided by the entity. For our purposes, however, the analysis used by the Second Circuit applies equally to accommodations required of employers.

The Court first noted that workplace misconduct is a legitimate and nondiscriminatory reason for terminating an employee, and that a requested accommodation that “simply excuses past misconduct” is unreasonable as a matter of law. Moreover, even when an employer doesn't engage in the ADA’s required interactive process to determine possible accommodations, as happened here, an employee may not recover if the employee can’t show that a reasonable accommodation existed at the time of the termination of employment.

That’s an important point for employers - in certain circumstances, it will be immediately apparent that no reasonable accommodation of a disability is possible. In those limited situations, an employer is not required to engage in the interactive process, which typically involves discussing and identifying the disabling condition and matching it against the essential elements of a job to determine how the job might be modified.

The Court also noted that an employee who engages in inappropriate conduct with coworkers, customers, and management is not a qualified individual because he cannot meet an essential element of the job. This is also an important holding--the Court determined that a request to excuse past misconduct can never be a reasonable accommodation, and the inappropriate conduct, even if it resulted from his disability, was a legitimate nondiscriminatory reason for termination in this case.

The plaintiff had proposed two accommodations.  The first was that the nursing home management should have spoken with his therapist to encourage and help the plaintiff interact better with his colleagues. Unfortunately, there was nothing in the record that indicated that any further discussions with plaintiff's physician would have helped to modify his behavior. The second accommodation proposed an education program for plaintiff's colleagues to increase their tolerance for his aberrant behavior. The Court flatly rejected this proposal, noting that it did not even attempt to address the inappropriate activities of the plaintiff but merely lowered the standard for acceptable conduct in the workplace. Again, this was an unreasonable accomodation as a matter of law.

The case is noteworthy because it clearly states the standards for dealing with misconduct that arises out of a disabling condition. Frequently these types of cases are some of the more troubling ones that an employer will face – it’s nice to have solid guidance from the Second Circuit on these issues.

An Intelligent Assessment of US Manufacturing Jobs

Here's a very interesting assessment of the future of manufacturing operations in the US.  My experience with clients that deal with this type of business mirrors the conclusions of the article--we are a manufacturing nation, but we will not employ as many people to do those jobs in the future.

Automation is the main reason, of course, along with the application of new ways of measuring output and effectively structuring work teams.  And as the jobs move from simple assembly operations to overseeing the machines that perform those operations, manufacturing jobs require more than a high school degree.  Especially given that modern public high schools are more like warehouses for the delivery of social welfare services than they are educational institutions.  But that's a matter for another blog.

The brief point is that you can't walk out of high school now and into a job where an employer will train you to be productive over the course of a multi-decade career.  Instead, you have to have some specific skills in math, science, management, and maybe more to even qualify for entry level positions.  

Welcome to the Brave New World.

UPDATE:  Here's another good read from James Fallows at The Atlantic on US manufacturing in the future.

The WSJ's View of Important Job Skills in the Near Future

My personal opinion is that these skills are always important, but maybe they really are more significant in this economy.
One thing for sure--the need to keep your public persona free of problematic associations has never been greater.  References to smoking dope on your Facebook page are just plain idiotic.

Can You Hear Me Now?

The facts of this particular case are so entertaining that I’ll let the record speak for itself and then get to the lesson. Merrill Lynch had two coworkers-- Mary Carroll and Jim Kelliher-- working in the same department. Carroll, who had something of a prickly personality, previously lodged a complaint with human resources that resulted in the termination of two other Merill Lynch employees. Following her complaint, she was further irritated by the fact that she was not considered for a supervisory position that opened up, although she told people she was not interested in the position and did not apply for it.

At some point Carroll felt that Kelliher, who apparently was some type of innocent bystander to the previous events, was performing some of her job duties. Rather than handle the situation within the corporate structure, or like a normal person, Carroll instead called Kelliher’s home on Thanksgiving evening in 2005 and began yelling at Kelliher over the telephone.

 Kelliher’s wife, hearing a very angry woman on the phone on which her husband was having a conversation, picked up a receiver in another room. As she listened in and became increasingly concerned at Carroll’s rants, she used the answering machine on the phone to record the conversation. She later testified that she was scared because it was Thanksgiving night at 9:00 p.m., and there was a screaming, profane, woman on the other end of the line who sounded unhinged. Accordingly, Kelliher’s wife believed that she needed to record the phone conversation in the event something violent happened. The Kellihers called the police the next day and Kelliher called his supervisor at Merrill Lynch and reported Carroll’s bizarre call.

Not being one to play defense, Carroll subsequently filed her own police report, accusing the Kelliher’s of violating the Illinois eavesdropping statute. After Carroll filed her complaint, Merrill Lynch fired her for her conduct on the call, and she escalated the situation by filing suit against the Kelliher’s and Merrill Lynch.

Ms. Carroll is the kind of employee who makes practicing employment law so gratifying. Specifically, I’m guessing that her bosses were quite happy to call her up and tell her that she was fired following these events. Moreover, her situation provides a good opportunity to analyze Illinois’ eavesdropping statute, which is one of the strictest in the country.

Illinois law prohibits recording a telephone conversation without the consent of everyone on the call, however, there is an exception which allows a party to record a conversation without the consent of the other party where there is a reasonable suspicion that the other person on the end of the call is about to commit a criminal offense against the person doing the recording. After the district court dismissed Carroll’s complaint with summary judgment based on this exception, the Seventh Circuit affirmed the decision, finding that Kelliher’s wife reasonably feared that a crime could be committed as a result of hearing a screaming woman on the other end of the phone threatening to kill her husband. So the lesson for employers is that when you have the very limited circumstance of an employee on the phone threatening to or about to commit a crime, you can record the call without their consent in Illinois, but the real lesson, I think, is that employees like plaintiff in this case usually find a way to blow themselves up without further help from the company.

Who Is a Title VII Supervisor: Supreme Court Review

The Supreme Court is set to review a Seventh Circuit decision that involves a key concept under Title VII discrimination law – who is a supervisor of the employee/discrimination victim? Illegally discriminating supervisors automatically subject an employer to vicarious liability for harassing conduct, so the question is a significant one for any type of harassment case.

The Seventh Circuit takes a fairly restrictive view of who is a supervisor. Employees properly considered supervisors who have the authority to hire, fire, demote, promote, transfer, or discipline an employee. The Seventh Circuit, quite sensibly, bases its definition on whether an employee has the ability to take tangible employment action against a subordinate--such ability means the employee is considered a supervisor. The EEOC and several other circuits take a far more expansive view, considering an employee to be a supervisor when she has the authority to control daily work activities in a way that materially enables harassment. The EEOC’s definition has a significant disadvantage for employers in that there are no bright line factors involved. In fact, theoretically, in a modern workplace with shifting work responsibilities and work teams, an employee could be a supervisor one day, and a coworker the next.

The arguments for this case are set in late November. I’ll be following up from there.

File this Under Chutzpah

Or sheer arrogance.  Or cluelessness.  Take your pick--after sinking your cruise ship, causing multiple deaths, AND abandoning ship to leave the passengers and crew to fend for themselves, you should expect to be fired.  And you should accept your pink slip quietly.
Things are just different in Italy.

Employee Ownership of Intellectual Property

Absent a formal agreement between a company and an employee, patent rights typically default to the inventor. Many employers require that employees sign a specific invention or intellectual property agreement that transfers the rights to anything created as part of the employee's job to the employer.

But what does it take to validate such a contract? Specifically, does an employer have to provide something other than continuing employment in exchange for the waiver of employee rights to make a valid contract?

A recent case out of the Federal Circuit (in the District of Columbia) answers this question in the negative. Specifically, where there is an agreement assigning all of an employee's job-related intellectual property rights to the company for inventions or other IP created on the employer's time, continued employment is sufficient consideration to validate the contract. The opinion is important in a couple of aspects: it establishes a valid precedent (at least under the state law in question, in this case Wyoming) that continued employment can serve as adequate consideration to support an employment agreement entered into at the start of employment; more importantly, even when the employee had conceived of an invention prior to joining an employer, failure to reduce to practice the invention (that is, manufacture or assemble it in any tangible way) kept the employee from acquiring rights to the concept. This was so because the agreement specifically required all previously existing IP to be reduced to practice in order to be excluded from coverage.

The lesson for an employer with respect to intellectual property rights? Get an agreement and make it a condition of an employment that requires the employee to assign all non-reduced IP rights to the employer. While this case does not close all the doors available to an employee to assert IP rights, its analysis is persuasive and should carry some weight for any federal court that considers it.

More Penn State Fallout--Former Coach McQueary Files Whistleblower Suit

And so the PSU/Jerry Sandusky/Joe Paterno saga continues.  At some point it will become clear to the people at PSU that they can't win for losing.  Specifically, there are no good choices for the University at this point, only increasingly bad ones.

I suppose this latest lawsuit could be assessed in terms of people and institutions getting what's coming to them--Penn State allowed itself to become a karmic black hole, and so therefore it should expect noxious consequences for some time.  But this is also a very good example of how a bad management culture can create effects that reverberate long after the principal miscreants have left the scene.  

The failure of the University to deal with the former coach's reporting Sandusky abusing a child ten years ago continues to create fallout for the school.  That initial failure led to the school removing the coach when he ultimately was identified as the key witness against Sandusky (and Joe Paterno).  It was clear that McQueary couldn't continue at PSU under the circumstances.  But it was also clear that his termination was fraught with legal difficulties for the school.  

Damned if you do and if you don't--the only way for PSU to avoid a lawsuit was to reach some kind of severance agreement.  Agreement has been in limited supply in State College lately.

Empire Building: EEOC Pushes Discrimination Law Into New Territory.

The Equal Employment Opportunity Commission recently issued a fact sheet describing how the anti-discrimination provisions of Title VII and the ADA can be contorted to apply to domestic violence or stalking situations. The guidance can be found here.

After reading it, my take is that the Commission is trying really hard to make a political statement here, rather than one that involves true legal analysis and application of the law to a new environment. Some of the situations are simply circumstances where an employer maintains a gender based preconception of domestic violence circumstances and acts accordingly. But the really expansive analysis that the Commission conducts simply doesn’t make a lot of sense, except in very, very narrow circumstances where an employer is either improperly linking gender to a particular, stereotypical personality trait, or in situations where no sane or competent employer would engage in such a nitpicky or extended analysis.

For example, the EEOC suggests that an employer might violate Title VII by not hiring a woman subject to domestic violence for fear that she would bring “drama” to the workplace. This scenario automatically presupposes that such an employer would not reject a man for the same reason, something that in my experience is more common. In an equally unlikely scenario, the Commission argues that an employer might violate the ADA by failing to take action to stop employees from harassing a co-worker who has been facially scarred in an attack by a former domestic partner. Seriously? This is not a domestic violence situation; in fact it has nothing to do with domestic violence, and everything to do with the company's harassment policy.

Given the amount of stretching and contorting that is present in this document, I’m pretty sure that it was really a political statement, designed to allow the president and his supporters to argue that they are really, really, really seriously focused on the needs of women. Most employers will not recognize themselves in these scenarios, and have already undertaken appropriate steps to protect their employees and their business.