Suits In The WorkPlace

Employers - This is What You're Up Against

Sex and the ADA

When is sexual dysfunction a disability?  The First Circuit had the opportunity to address this issue, as well as the issue of harassment under the ADA in a graphic case involving a Wal-Mart employee who was treated for impotence with a penile implant.

There is not much law in this area, because typically these types of problems do not become known to coworkers.  However, when the “girls in personnel” (a quote from the opinion) got a hold of this luckless individual’s benefits paperwork for the operation, word quickly spread through the facility.  Plaintiff then suffered four years of relentless ridicule ranging from comments about his being impotent to remarks about his prowess because of the artificial enhancement.

The initial and most important issue, of course, is whether the plaintiff was disabled.  Must practitioners in this area of law agree that the key to knocking out an ADA case is by showing that the plaintiff cannot meet the statute’s stringent requirements for being disabled.  Given that a factfinder must consider the curative effects of any mitigating measures under the Sutton trilogy, it would seem that a reasonably good case could be made that the plaintiff no longer suffered from a limitation on a major life activity, and therefore had no protection under the law.   But the court never reached this issue because Wal-Mart failed to raise it at the conclusion of the presentation of evidence, which precluded review on appeal.  Instead, the issue was resolved purely by the jury, which had no difficulty finding a disability as a precondition to awarding damages for four years of sexual taunting.

Similarly, the court affirmed the hostile work environment based on disability finding, noting that the affirmative defenses available under Burlington Industries were not applicable where everyone in the entire facility was apparently involved in teasing and harassing plaintiff, despite his protests.

The only real positive for Wal-Mart in this whole mess was the fact that plaintiff apparently neglected to put on evidence that he looked for work or was unable to get a job and so was not entitled to an equitable remedy of back or front pay.  This limited the damage exposure to Wal-Mart considerably and the Court of Appeals affirmed a relatively small verdict of $236,000.  It could have been a lot worse.

Drink Up - It's Time for Work!

Do you ever wonder what prompts people to do completely absurd things at work?  I always assumed it was because I work in a building full of lawyers, but apparently there is another explanation.

A recent study funded by the National Institute on Alcohol Abuse and Alcoholism reports that 15 percent of the U.S. workforce has either been hung over, been drinking shortly before showing up at work, or been drinking or impaired at work at least once during the previous year.

To place this in perspective, that figure translates into roughly 19.2 million workers! The study asked 2,085 adults (and lawyers) in the contiguous 48 states and the District of Columbia how often during the previous year they drank alcohol within two hours of reporting to work, how often they drank during the work day, how often they worked under the influence (for those who could remember), or how often they worked with a hangover. Researchers interviewed respondents from January 2002 to June 2003 and according to the institute, the sample was chosen to reflect a microcosm of the U.S. workforce (and lawyers).

Surprisingly, the study reports that young, unmarried men (and lawyers) are the most likely to show up at work drunk or hung over. The study data also suggests that workers with certain job types and certain work hours report higher percentages of on-the-job impairment. The highest rates were found in management occupations, law, sales, arts/entertainment/sports/media occupations, law, food preparation and serving occupations and building and grounds maintenance jobs (and law). In addition, the study indicated that evening and night-shift workers and those working nonstandard shifts involving irregular or flexible hours were more likely to report drinking before or during work than day-shift workers.

And don't forget, the survey only reflects those people who admitted being mildly toasted before, during or after punching the clock.  The real number is likely much higher.

In all seriousness, this is a huge issue for employers.  Although you can generally discipline employees for behavior induced by alcohol consumption (like dancing on tables in the lunch room or other real life examples too numerous to list), recovering alcoholics can be protected under the Americans with Disabilities Act.  Employers should review their policies and practices to insure they strike a proper balance between discipline and accommodation, and should consult with their counsel if they have questions.  But not on Mondays or Fridays.

Seventh Circuit Smackdown on Strikebreakers Statute

This week, the Seventh Circuit Court of Appeals gave labor groups and their political cronies in Illinois a good, swift kick in their collective behinds.  In 520 South Michigan Ave. Assoc., Ltd. v. Devine, the court reversed the district court’s dismissal of an employer’s challenge to an amendment to an Illinois law prohibiting the use of temporary workers during a strike.  The court ventured well beyond its limited holding in order to smack the amendment, known as the Strikebreakers Act, on constitutional grounds. 

Illinois law makes it a crime to employ “professional strikebreakers.”  A few years ago, the state broadened this prohibition to criminalize the hiring of day laborers and temporary staff during strikes.  After the amendment was enacted, the plaintiff, who was in the midst of a strike and facing probing inquiries from the local Illinois states attorney for Cook County, sought a declaratory judgment that the Strikebreakers Act is preempted by federal law.  The district court found that the employer lacked standing, but the Seventh Circuit disagreed and remanded the case for decision on the merits. 

Rather than stop there, the Seventh Circuit then launched into a biting critique of the constitutionality of the amendment.  According to the court, the Strikebreakers Act places an impermissible limit on the employer’s use of an economic tactic that is protected by federal law.  Indeed, “[t]he state’s effort to make the hiring of replacement workers a crime is so starkly incompatible with federal labor law . . . that we do not understand how a responsible state legislature could pass, a responsible Governor sign, or any responsible state official contemplate enforcing, such legislation”(emphasis mine).  The Seventh Circuit, which resides in Chicago, can't really be serious here.  Anyone who lives in this area knows full well that the party in control of Cook County (and the state legislature and the governor's office) has been in the hip pocket of organized labor for decades.   

Though the matter now is in the hands of the district court, the Strikebreakers Act doesn’t have long to live.  I would not be surprised if such a forceful and persuasive decision had influence beyond the Seventh Circuit, or at least beyond Cook County, Illinois.

Democrats, Unions Disgruntled with NLRB Recess Appointee, Probably for Both Cause and Effect

Computer Security Part II

            A recent decision out of the New Jersey Superior Court, Appellate Division, adds an additional level of concern for employers about monitoring employee actions over the Internet.  In Doe v. XYC Corp., Docket No. A-2909-04T2, December 27, 2005,  the Court ruled that an employer can be held liable in tort for the non-business actions of an employee on the Internet, in this case, the viewing and transmission of child pornography images. 

            The facts are straightforward and, as you might expect, awful. XYC had a company internet policy advising employees that company computer use was not private and could be monitored for inappropriate activity.   A company employee was suspected of using his computer to view pornographic (although not specifically child pornographic) websites on the Internet.  Several members of management, including the company's IT staff and the employee's immediate supervisor, were aware that the employee visited these websites and met with the employee on two occasions to tell him to stop his inappropriate use of the company computer.

            Unknown to the company, the employee was taking nude photographs of his 10-year-old stepdaughter and storing some of these pictures on his work computer.  Shortly after being reprimanded a second time, the employee transmitted three of his stepdaughter's pictures to an internet child pornography site using his work computer.  He was arrested shortly thereafter. 

            In ruling against a motion for summary judgment on behalf of the employer, the Court determined that the company had an affirmative duty, once it recognized that the employee was visiting "pornographic sites," to further investigate his activities, which ultimately would have uncovered the fact that he was viewing child pornography.  Noting the strong state criminal policy against child pornography, the Court then made the leap to finding that the employer negligently failed to pursue and investigate the activity that violated its policy.  It was a short step to the determination that the employer's failure to properly investigate its employee was a proximate cause of damage to the child and her mother.

            The problem with the Court's opinion is that the evidence that the employer had regarding the employee's Internet activities was hardly unequivocal.  I cannot find a reference indicating that the employer should have known the employee was doing anything other than visiting Internet pornography sites.  This is objectionable conduct, and would typically warrant some form of discipline, but would hardly set off alarm bells requiring a full and complete scoping of an employee's computer.  My experience tells me that many people look at websites that may contain pornography at work and a typical employer's response is a reprimand and warning not to do it again.  What the Court seems to be saying in this case is that the discovery of an employee visiting a pornographic website establishes a duty on the part of the employer to fully review the employee's internet activity, and a failure to do so can expose the employer to liability for whatever skeletons happen to be in the employee's private life that might be uncovered as a result of such a search.

This troubling case may be the precursor to a wider scope of obligations on the part of employers to act in a quasi-law enforcement capacity based on extremely limited knowledge of misconduct.  Let’s hope not.

No Free Lunch for Wal-Mart

Let's keep going with this California trend. Just before Christmas, a California jury put a lump of coal in Wal-Mart’s stocking. After deliberating for three days, the jury determined that Wal-Mart had violated a state law that mandates a 30-minute unpaid meal break for employees. As a result, Wal-Mart owes class members roughly $57 million for missed meal period and a staggering $115 million in punitive damages. The award of punitive damages may have been driven in part by company documents which appeared to indicate that Wal-Mart executives were not entirely unaware that employees were not taking mandatory meal breaks. Wal-Mart has appealed the verdict, including the appropriateness of punitive damages. Meanwhile, the world’s largest retailer faces similar class actions for meal violations in over 30 states.

Lesson 1:  Employers need to make sure that their operations comply with meal break laws, especially if they do business in different states with different requirements. If they don’t, what would otherwise have been a free lunch could become pretty costly.

Lesson 2:  Don't go to trial 3 days before Christmas.

Savaglio v. Wal-Mart Inc., Cal. Super. Ct., No. C-835687, verdict 12/22/05.