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The U.S. Equal Employment Opportunity Commission has sued Toys “R” Us, Inc. for alleged disability discrimination under the Americans with Disabilities Act. A deaf woman applied for a job at the toy retailer’s store in Columbia, MD. She was denied a sign language interpreter for her interview and the store refused to hire her despite her qualifications and ability to do the job, with or without a reasonable accommodation. I asked JAN expert Linda Batiste some questions about this case:
- Is the implication that it’s reasonable for a company to hire an interpreter any time a job applicant needs it?The implication is that under the ADA providing an interpreter is a reasonable accommodation which a company must consider on a case-by case basis. The ultimate goal is effective communication during the job interview, and in some cases this means an interpreter, if no undue hardship is involved.
The problem that Toys “R” Us ran into was flat out refusing to provide an interpreter for the job interview without offering an alternative method of communication. Instead, the applicant was instructed to provide her own accommodation. I saw no indication that Toy “R” Us claimed undue hardship.
- What if a company interviews 10 people for a low wage job and hires only one. What if two of the applicants are deaf? Do they need to provide one for each candidate?In some cases, an employer might have to consider hiring an interpreter for each applicant who is deaf. The Toys “R” Us case involved a group interview, and perhaps in such a situation only one interpreter would be needed. However, whether it’s one or multiple interpreters, most job interviews don’t last more than an hour, so the actual expense might not be that much, especially for a large company.
- If hired, what would be the company’s obligation to provide an interpreter then? That interpreter could cost more per hour than the employee.If hired, the employer would have to assess the need for an interpreter on a case-by-case basis. For some jobs it might be minimal; others it might be more extensive. Again, the key would be effective communication; and, for some jobs, that can be done in other ways besides an interpreter. Under the ADA, employers should probably not try to make the argument that an interpreter would get paid more an hour than the deaf applicant. This isn’t generally accepted as meeting the undue hardship defense.
My take: Nothing drives employers nuts more than the ADA’s “case-by -case” analysis. Although larger companies might absorb such expenses readily, it could be an undue burden on smaller firms. The best answer is to get professional advice in such circumstances.
These case summaries, courtesy of Worklaw Network firm Shawe Rosenthal, spotlight the symbiotic interaction between these two leave laws.
Case #1:
A federal court in Alabama held that an employer had no duty under the Family and Medical Leave Act (FMLA) to restore the employee to her job with an accommodation under the Americans with Disabilities Act (ADA). In Brown v. Montgomery Surgical Center, the employee who sought to return to work after FMLA leave provided a doctor’s note with lifting and standing restrictions. The employer refused to reinstate her without a full release. She then sued under the FMLA and ADA. The employee’s ADA claims were dismissed as untimely filed. With regard to her FMLA claims, the Court observed that the right to reinstatement under the act is not absolute, and held that an employee who is unable to perform an essential job function is not entitled to reinstatement. The FMLA does not require an employer to provide a reasonable accommodation that will enable the employee to return to work at the end of FMLA leave. The reasonable accommodation obligation arises from the ADA, not the FMLA.
More on the ADA and FML
In another case exploring the interaction between the ADA and the FMLA, a federal court in Pennsylvania held that an employee was not entitled to reinstatement under the FMLA to a pre-leave position that the company had given her as an accommodation for a temporary disability under the ADA and to provide better accommodation of her need for intermittent leave under the FMLA. In Karaffa v. Montgomery Township, a pregnant employee who was usually assigned rotating morning, evening, and overnight shifts was reassigned to morning shifts only as an accommodation for her gestational diabetes. Following her FMLA leave, the employee sought to return to the morning shift assignment. The court noted that she had been assigned the shift in connection with her need for intermittent FMLA, and thus it was not a position that she held “when leave commenced.” Moreover, under the ADA, this morning shift assignment was an accommodation for her temporary disability of gestational diabetes, which no longer existed after the birth of her child. Thus, both laws required the employer only to reinstate her to the original rotating shift assignment.
Now that summer season is here, it’s time to review your payment obligations to interns.
The DOL’s Test for Interns and Trainees
Although the Fair Labor Standards Act (FLSA) doesn’t define intern or provide an exemption from minimum wages or overtime for interns, it recognizes that not everyone who performs duties for an employer is an “employee,” and thus entitled to compensation under the wage and hour laws. Generally, the FLSA provides that if a company benefits from using interns, it must pay them at least minimum wage. However if the intern isn’t doing anything that directly benefits your company but is just observing or learning, you might be justified in not paying him or her.
Whether student interns are considered employees under the FLSA depends on the circumstances surrounding their duties and activities. The U.S. Department of Labor (DOL) uses a six-part test to distinguish interns or “trainees,” from employees:
- The training, even though it includes actual operation of the employer’s facilities, is similar to what would be offered in a vocational school.
- The primary benefit of the training is for the intern.
- The trainees don’t displace regular employees, but work under close observation.
- The employer derives no immediate advantage from the activities of the interns, which on occasion might actually be counterproductive.
- The intern is not guaranteed a permanent job at the end of the program.
- Both parties understand that the intern is not entitled to wages for the time spent in the internship.
Who Benefits: Intern Or Company?
Although courts will use these factors to analyze a worker’s status, they don’t necessarily weigh all them equally. In fact, judges will often find that the most important criterion for determining whether someone is subject to the FLSA involves which party enjoys the primary benefit from the internship.
Essentially, if the intern benefits primarily from the arrangement, she will be considered a volunteer, rather than a paid employee. However, if the company is the primary beneficiary of the intern’s work experience, this person will be considered an employee who must be paid at least the minimum wage.
In one case involving a company’s use of trainees, McLaughlin v. Ensley, the Fourth U.S. Circuit Court of Appeals held that the owner of a snack foods distribution business had to pay trainees for route jobs. Before being formally hired for such a job, trainees were required to participate in what was usually five days of exposure to the tasks they would be expected to perform. They traveled an ordinary route with an experienced route man, loaded and unloaded the delivery truck, received instruction on how to drive the truck, restocked stores with the employer’s product, were introduced to retailers, learned basic maintenance on snack food vending machines and occasionally helped prepare orders of goods with financial exchanges. However, the employer did not pay the trainees during their training week.
In determining whether this practice was legal, the Fourth Circuit explained that the key question involved whether the employer or the trainees received the principal benefit from the orientation. The court held that the employer enjoyed a greater advantage than the trainees because they were, in fact helping the company distribute snack foods. The skills they learned in training were either so specific to the job or so general that they had practically no transferable usefulness. As a result, the appeals court ruled that the trainees who participated in the orientation program were entitled to receive minimum wages.
Ensuring FLSA Compliance
If you offer unpaid internships, structure the position so that the intern is the one who will receive the primary benefit of the work experience. Unpaid internships should concentrate on exposing the intern to a particular career field and offer a mentoring experience. The focus should not be on production – do not use interns as a free source of labor!
Also, if you use unpaid interns, document the nature of the relationship, explain that both parties intend the arrangement to be an unpaid internship that will provide the intern with practical learning experience. The intern’s actual duties should comply with the terms set forth in this s written documentation.
The Bottom Line:
Having interns can be a great experience, not only for the intern but also for your company. Interns can bring a fresh perspective to your business and allow you to assess potential employees. Employees often get their proverbial foot in the door by starting as summer interns while in school and then becoming full-time workers after graduation.
I just finished listening to an interesting podcast by the Freakonomics authors about the risks that gun use presents. For example, they indicated that the odds of a gun causing a person’s death are about 1 in 10,000, while the chances of a backyard swimming pool causing a death are some 100 times greater. Does this mean that we should focus on swimming pool control and forget about gun violence? Although I doubt that anyone would suggest this, it does give food for thought.
For the past dozen years, I’ve been in a catbird seat observing the incident of employment practices liability exposures and lawsuits. My conclusion: Employee Liability Practices Insurance cannot cover the major personnel practice exposures facing businesses. For example, there’s no risk mitigation for making poor hires, fostering low productivity, triggering high turnover, or failing to have workers play like a team. The frequency of such exposures, and their expense, far exceed those associated with employee lawsuits.
Let me share another statistic. In 2012 the U.S. had one of the worst years ever for mass shootings, with approximately 700 fatalities (four times the annual average toll). As you might expect, these sensational and painful cases grabbed plenty of headlines. However, in the same year, roughly 20,000 Americans committed suicide using guns, killing some 11,000 other people in the process – and garnering little, if any, media attention.
The same thing holds true for workplace risk exposures. How many articles are you going to read about the impact of bad hires or productivity left on the table every day? Where’s the drama in that? However, a, juicy lawsuit in which a sexual harassment claimant gets a multi-million dollar verdict will get plenty of press.
Likewise, more than half of the discussions at any HR conference will involve compliance exposures. Meanwhile, the greatest risk to your company’s survival has little or nothing to do with compliance litigation. In my 30 years as an attorney, I’ve seen only a handful of small businesses go under because of employee lawsuits – and hundreds of companies of all sizes go out of business because of poor management practices.
As with the gun/swimming pool example, we need to understand the relative probabilities of the various risks employers face.
None of us need the horror of mass shootings or nasty employee lawsuits. These events make for good press (as they say, “if it bleeds, it leads.”) When we run 75 mph as a society, it’s hard for us to connect without doing so through a mass pity party. The media taps into this social reality on a daily basis with sensational headlines and lead stories, making it all too easy to divert business owners and managers from focusing on significant employment risk management issues.
Food for thought…
I recently received this hotline inquiry:
Q: We have a safety bonus program that gives a $25 gift card each quarter for all groups that have no lost-time accidents, and at the end of the calendar year provides them with a share in an $8,000 bonus check. In researching this, I found that OSHA has stated that safety bonus programs which give monetary rewards to employees for no-lost time accidents can be seen as creating incentives to not report accidents or to pressure fellow employees not to do so. However, I read in a SHRM article that the Secretary of Labor stated that there would not be a fine for keeping such programs. Should we stop our incentive program it or leave it as is and wait for the DOL to prohibit it?
A: We’ve seen this memo from OSHA on HR That Works. Incentives always have their shadow side. If management makes it clear that they want injuries reported, the next step is to approach your employees and ask how the company can use these incentives in a way that does not encourage non-reporting? They might well have some better ideas than what you’re using. There’s no law prohibiting safety incentives – just concerns about possible negative results from using them.
I recently reported on a California case in which a manager was fired partly because he and his buddies would tell off-color jokes after work in one guy’s office, out of the earshot of others. A female attorney who was investigating a claim brought by a poorly performing employee felt that such conduct violated the company’s sexual harassment policies, even though it had nothing to do with the claim being filed.
I say, only in America!
I realize that many people today are hypersensitive to finding their rights violated. The complaining employee in this case seemed to be such a person. If, for some reason, someone feels ostracized by society or the demographics of the company where they work, they will constantly be filtering events to show that others are discriminatory and insensitive. Of course, at the family picnic next week, this “offended” employee will be laughing when their uncle tells the same jokes they found so offensive in the workplace.
Today’s workplace has changed. Mad Men is a period piece. Whether you like the great cleansing of the American workplace or not, it’s reality. So, if you want to give an employer an excuse to fire you, tell some off-color jokes on the job – or you might realize that’s probably not worth it and tell them outside the workplace. Things have gotten to the point that Prairie Home Companion jokes can be deemed offensive when uttered in the workplace. Are we so stressed that we’ve lost all sense of humor?
I’ll leave you with a safe joke my 11-year old told me that you can share in all sorts of company: “What did the green grape say to the purple grape?” Answer: “You gotta breathe, man!” As I see it, there are too many hyper-sensitive folks in the workplace that could do some breathing as well.
The EEOC received plenty of publicity from its 2010 lawsuit against Kaplan Higher Education (EEOC v. Kaplan Higher Educ. Corp., N.D. Ohio), alleging that the company’s use of credit reports as a factor in hiring decisions for financial aid positions had a discriminatory impact based on race and, thus violated Title VII of the 1964 Civil Rights Act. A federal district court dismissed the EEOC suit on January 28, 2013.
Kaplan did not track the race of its applicants, and was not required to do so. To show a discriminatory impact based on race, the EEOC hired expert “raters” to determine the race of applicants by pictures and other information, and thus evaluate whether Kaplan’s practice had a discriminatory impact. In dismissing the case, the court held that the commission failed “to present sufficient evidence that use of ‘race raters’ is reliable.” The court also chastised the EEOC saying that, “It is clear that EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is accepted by the scientific community as a means of determining race.” The court concluded that because EEOC’s expert “relied on data obtained by unreliable means… whether the jury could ultimately ‘correct’ the process employed by the ‘race raters’ is irrelevant.”
The court ultimately dismissed the case because the EEOC did not provide sufficient evidence to make its case.
Don’t be surprised if the commission keeps pursuing claims that the use of tests, credit reports, and other background checks has a discriminatory impact on blacks, Hispanics, women, and others. The EEOC will simply look for another case and try to correct the evidentiary issue that resulted in the dismissal of its claims against Kaplan.
The Equal Employment Opportunity Commission handled nearly 100,000 claims in 2012. According to the commission’s press release, “The U.S. Equal Employment Opportunity Commission (EEOC)…received 99,412 private sector workplace discrimination charges during fiscal year 2012, down slightly from the previous year. The year-end data also show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges. The fiscal year 2012 enforcement and litigation statistics, which include trend data, are available on the EEOC’s website.
The press release added that:
“In fiscal year 2012, the EEOC filed 122 lawsuits, including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits. The EEOC’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million. EEOC also continued its emphasis on eliminating systemic patterns of discrimination in the workplace. In fiscal year 2012, EEOC completed 240 systemic investigations which in part resulted in 46 settlements or conciliation agreements. These settlements, achieved without litigation, secured $36.2 million for the victims of unlawful discrimination”
What the EEOC didn’t mention is that it’s backing off a bit on its aggressive litigation stance due to a combination of tight budgets and mixed courtroom results. For example, as mentioned in the EEOC Credit Report Lawsuit Dismissed article, a federal district court recently dismissed the commission’s well-publicized credit background lawsuit.
I for one, hope the EEOC focuses more on education and conciliation, rather than litigation.
The California case of Diane Minish v. Hanuman Fellowship carries a valuable lesson for anyone involved with nonprofit organizations.
After Diane Minish, a volunteer worker with the nonprofit Hanuman Fellowship was accidentally thrown from a forklift, she sued the organization for negligence. Hanuman argued the exclusivity of Workers Compensation as a remedy, claiming that its Comp policy covered the plaintiff. Although Minish did receive comp benefits, she felt they were too low – and so she sued for more. As in many states, under California law, “private, nonprofit organizations are not required to provide [Workers Compensation] coverage for volunteers (see §§ 3700 [requiring coverage for employees]; 3352, subd. (i) [volunteers are not employees]), section 3363.6 allows them to do so if they choose.” Although the statute, is awkward and disjointed, it provides, in essence, that a volunteer becomes a covered employee if the board [of the nonprofit] so declares in writing before any work-related injury.
Minish argued that she had not agreed to this arrangement:
“Plaintiff contends that under section 3363.6, a declaration rendering volunteers covered employees does not become effective unless and until an affected volunteer has notice of the declaration and voluntarily accepts Workers Compensation coverage before any injury. Thus, because the undisputed evidence establishes that she did not receive such notice and did not voluntarily accept Workers Compensation coverage before the accident, the Act was inapplicable. ”
The court disagreed, ruling that
“Here, of course, without the slightest advance warning, Hanuman plunged Minish into the toils of the Workers Compensation system not only without her knowledge, but – as soon as she learned of it – very much against her will. Section 3363.6 does not explicitly require notice to volunteers that they have been deemed volunteer/employees. Nor does the statute provide that such status must be accepted by each volunteer individually… In short, we reject the plaintiff’s claim that section 3363.6 imposes a notice and acceptance requirement.”
However, the court dismissed the argument that Minish was “estopped” from denying the exclusivity because of the fact that she used the Workers Comp system. So, although the suit will go back to court, chances are that she will lose in her attempt to claim negligence.
The bottom line: Whether you sit on a non-profit board, run a non-profit, or advise one, make sure you do what’s required under state law to make sure that your volunteers: a) sign liability waivers and b) get Workers Comp coverage. Doing so will help avoid an ultra-expensive negligence claim. Also, make sure that your insurance coverage addresses such claims where the doctrine of workers comp exclusivity does not apply.
