Another employer fights the good fight... and wins

Posted by Lori A. Clary on November 08, 2011

As we reported earlier, employers are challenging – and courts are taking steps to reign in — EEOC subpoena power.  In a recent decision issued by a federal court in Illinois, the employer successfully challenged an EEOC subpoena that sought confidential health information that was irrelevant to the charge before it.

In EEOC v. Loyola University Medical Center.PDF, the EEOC was charged with investigating the allegations of one employee who claimed that she had been discriminated against on the basis of a disability because she was required to undergo a fitness-for-duty examination.  In the course of its investigation, the EEOC subpoenaed records for all employees who had been required to undergo a fitness-for-duty examination regardless of whether the employee held a position similar to the charging party, worked for the same supervisor, or had anything else in common with the charging party that might shed light on the validity of her allegations.  The employer refused to provide the records, citing their irrelevance to the charge and their confidentiality.  In response, the EEOC sought court enforcement of the subpoena.

The court denied the EEOC’s request.  In so doing, it held that “the medical records of other employees would shed no light whatsoever” on the merits of the underlying charge.  The court also found that the records were not likely to reveal related evidence of discrimination.

Although subpoenas of any sort are not to be ignored, employers and their attorneys should carefully consider the scope of the request before automatically turning over documents that have little to do with the allegations at hand.

There's still time to register for McDonald Hopkins' Labor and Employment Law Seminar

Posted by Lori A. Clary on October 24, 2011

On November 3, 2011, McDonald Hopkins’ labor and employment law attorneys will present their annual seminar, Life Cycle of the Employment Relationship:  The Lay of the Land and How to Navigate It.  This all-day seminar will focus on hiring the right talent, protecting your company’s assets through the use of employment agreements, addressing data security issues, managing the employment relationship, and effectively parting ways with employees who are no longer a good fit.  A cocktail reception will follow.

Although McDonald Hopkins is pleased to offer this seminar free of charge to our clients and friends, space is limited.  To register, click here.  We hope to see you there!

EEOC to Employers Via $20M Verizon ADA Settlement: Can you hear me now?

Posted by George Asimou on July 12, 2011

The EEOC announced on Wednesday July 6, 2011 that it had settled a nationwide class disability discrimination suit with Verizon for $20 Million – the largest ADA settlement in EEOC history.  The EEOC filed suit in federal court earlier this month alleging that Verizon’s “no fault” attendance policies mandated “that when an employee accumulates a designated number of ‘chargeable absences’ an employee is placed on a disciplinary ‘step’ and additional ‘chargeable absences’ during such step period result in the placement of the employee in the next step, which has more serious consequences, up to termination.”

The EEOC noted that such policies made no exceptions for disability-related leaves, which is contrary to the EEOC’s enforcement position that one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) are violative of the Americans with Disabilities Act.  The policy did exempt FMLA leave.

The Verizon settlement, which also includes a consent order in which the EEOC will supervise Verizon’s revision of its attendance policies and its training of management, is just the latest step in an ADA enforcement campaign that we have reported on previously.

Employers are well-advised to review their leave policies to ensure compliance with ADA requirements.

EEOC on ADA: One rule -- no boundaries

Posted by George Asimou on June 21, 2011

The United States Equal Employment Opportunity Commission (EEOC) held an open meeting on June 8, 2011 on the appropriate use of disability leave as a reasonable accommodation at its headquarters in Washington, D.C.  The open meeting is just the latest step in the EEOC’s on-going effort to move the marketplace towards its enforcement position that employers may not implement one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) – a lesson that Sears Roebuck learned in 2009 at the decidedly burdensome price of $6.2 Million.

A few notes:  Vandalism_clock_Wikimedia.jpg   

  1. Employers are well advised to review the leave sections of their handbooks to ensure that disability leave policies are generally open-ended, providing that leave requests be evaluated on a case-by-case basis, with a disclaimer that such leaves cannot pose an undue hardship to the business.  Fixed period disability leave policies should be used with caution and in consultation with legal counsel. Employment handbook provisions are intended to be your Exhibit A in litigation, not the plaintiff’s direct evidence of discrimination. 
  2. The EEOC’s enforcement position re-affirms some longstanding first principles of ADA compliance.  The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.  What’s reasonable and what’s an undue hardship is a case-by-case analysis – and certainly not subjectively at the employer’s discretion.  Think less of a sprained ankle or headache for your business and more a broken ankle or a stay-in-bed migraine. 
  3. The EEOC’s enforcement position further complicates decision-making as to leave requests involving the so-called Bermuda Triangle (i.e., the intersection of the Family and Medical Leave Act [FMLA], the Americans with Disabilities Act [ADA], and workers’ compensation laws).  The FMLA’s (limited) sex appeal lies in providing some certainty as to the duration of medical leave.  In most circumstances, its 12 weeks, tops.   The EEOC’s enforcement position requires employers to determine if an employee’s “Serious Health Condition” under the FMLA presents a “Disability” under the ADA, then to act accordingly in making a determination as to whether leave might extend beyond 12 weeks.   “Welcome to Bermuda!” the EEOC seemingly tells employees with disabilities “Stay a while – the weather’s great!”

The EEOC’s enforcement statistics forecast decidedly stormier weather for employers.   The most recent data for Fiscal Year 2010 show a marked increase in disability claims, topping 25,000 for the first time since records were kept, an increase of 15% from Fiscal Year 2009.  Regardless of whether you’re an FMLA employer or not (while the FMLA generally applies to employers with 50 of more employees, the ADA generally applies to employers with 15 or more employees), take care to act with judicious flexibility in determining how reasonable to be in extending leave as an accommodation under the ADA. 

(h/t)   Workplace Prof’s Blog.

Fight for your right: Employer successfully challenges EEOC administrative subpoena

Posted by Todd L. Sarver on June 16, 2011

Administrative agencies, the EEOC and NLRB included, often view their subpoena powers broadly – sometimes in the estimation of employers and their counsel, too broadly. A recent Pennsylvania federal court case took a narrower view.

In EEOC v University of Pittsburgh Medical Center (UPMC).pdf, the district court for the Western District of Pennsylvania ruled that an administrative subpoena the EEOC issued the University of Pittsburgh Medical Center was a “fishing expedition” and denied the application for enforcement of the subpoena.

The dispute stemmed from an Americans with Disabilities Act (ADA) charge filed against a nursing home employer, Heritage Green, regarding an employee it discharged after the employee exhausted available leave. Heritage Green is a subsidiary of UPMC.

The EEOC sent UPMC a request for information seeking the identity of all employees corporate-wide who had been terminated pursuant to leave of absence or disability policies. When UPMC refused, the EEOC issued a subpoena for the information. UPMC filed a motion to revoke or modify the subpoena.

The court stated that, while the EEOC has broad subpoena power, that power is not without limits. The court concluded that the EEOC’s subpoena “overreached” and that the information sought could not be deemed relevant to the charge.

The court also somewhat chastised the EEOC for not doing anything to otherwise investigate the charge, or to more narrowly tailor the information sought. The EEOC had not made any effort to determine whether an individual violation occurred before launching an investigation into an alleged systematic violation.

Most state and federal agencies have been increasingly aggressive in recent years regarding their use of subpoena power. While employers should proactively engage administrative agencies to avoid potentially costly subpoena disputes, employers also should carefully review information sought, both informally and through subpoenas, to ensure they are not needlessly opening their operations to unnecessary scrutiny.