Archive for September, 2015

EEOC Accuses Subway Franchise of Firing Employee Because He Was HIV-Positive

A Subway franchise in Indiana violated the Americans With Disabilities Act when it fired an employee after he told his manager that he was HIV-positive, the Equal Employment Opportunity Commission charged in a lawsuit filed in the U.S. District Court for the Southern District of Indiana.

According to EEOC’s lawsuit, Subway terminated an employee of its Sheridan store (identified as John Doe for purposes of the filing) after he disclosed to his manager, Maria Manawat, that he was HIV-positive.

“John Doe was a good employee who wanted to work, was fully capable of working and was experienced in the restaurant industry,” said Laurie A. Young, regional attorney for EEOC’s Indianapolis District Office. He was terminated solely because of stereotypes his employer had regarding persons with HIV. This is unlawful, and EEOC is here to fight such discrimination.”

What could Subway’s defense be in this situation? It might argue that retaining the employee would pose a “direct threat” to his safety or the safety of others. As part of a series of Questions and Answers on The Americans With Disabilities Act and Persons with HIV/AIDS, the U.S. Department of Justice’s Civil Rights Division laid out what the employer has to prove to make that case.

Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee who has HIV or AIDS?

Yes, but only under limited circumstances. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat—i.e., a significant risk of substantial harm—to the health or safety of the individual him/herself or to the safety of others, if that risk cannot be eliminated or reduced below the level of a “direct threat” by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically-supportable methods that there is a significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence—rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes—the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.

Transmission of HIV will rarely be a legitimate “direct threat” issue. It is medically established that HIV can only be transmitted by sexual contact with an infected individual, exposure to infected blood or blood products, or perinatally from an infected mother to infant during pregnancy, birth, or breast feeding. HIV cannot be transmitted by casual contact. Thus, there is little possibility that HIV could ever be transmitted in the workplace. For example:

  • A restaurant owner may believe that there is a risk of employing an individual with HIV as a cook, waiter or waitress, or dishwasher, because the employee might transmit HIV through the handling of food. However, HIV and AIDS are specifically not included on the Centers for Disease Control and Prevention (CDC) list of infectious and communicable diseases that are transmitted through the handling of food. Thus, no direct threat exists in this context.
  • An employer may believe that an emergency medical technician (“EMT”) with HIV may pose a risk to others when performing mouth-to-mouth resuscitation. However, the use of universal precautions among emergency responders means that the EMT will be using a barrier device while performing resuscitation.

Having HIV or AIDS, however, might impair an individual’s ability to perform certain functions of a job, thus causing the individual to pose a direct threat to the health or safety of the individual or others. For example:

  • A worker with HIV who operates heavy machinery and who has been experiencing unpredictable dizzy spells caused by a new medication he is taking might pose a direct threat to his or someone else’s safety. If no reasonable accommodation is available (e.g., an open position to which the employee could be reassigned), the employer would likely not violate the ADA if it removed the employee from the position until a physician certified that it was safe for the employee to return to the job.

As noted above, the direct threat assessment must be an individualized assessment. Any blanket exclusion—for example, refusing to hire persons with HIV or AIDS because of a perceived risk—would violate the ADA as a matter of law.

For more information on the lawsuit, click here.

EEOC: Hospital Should Have Reassigned Disabled Patient Aide to New Position

The Equal Employment Opportunity Commission says that employees whose disabilities keep them from performing their current job shouldn’t have to compete with other employees when seeking the accommodation of job reassignment. And so it has filed an Americans With Disabilities Act lawsuit against a hospital that allegedly made an employee with a back injury do just that.

According to EEOC’s lawsuit, Adrianna Cook was hired by Methodist to assume the job of patient care technician, which involved lifting and transporting patients.  While performing this duty, Cook severely injured her back and requested a reasonable accommodation in the form of a transfer to a job that did not require heavy lifting. EEOC alleges that when a patient sitter position caring for newborns and scheduling coordinator job became available, Cook applied for these positions, which did not involve any heavy lifting.

Despite Methodist’s acknowledge­ment that she was qualified for these jobs, Cook was not given either job as a reasonable accom­mo­dation, and, as a result, the hospital terminated her, the EEOC says.

“Requiring a disabled emp­loyee to search for a vacant position for which she is qualified, then simply abandoning her in that process, is not fair or reasonable treatment,” when the employee can no longer perform a particular job due to a disability,said Toby Wosk Costas, Supervisory Trial Attorney at the Dallas District Office.  “One would hope that a healing institution such as a hospital would understand that.”

Here’s the EEOC’s Sept. 24 announcement of the lawsuit.

Communications Company Charged in ADA Lawsuit Alleging Nonaccommodation of Diabetic

A leading communications company violated the Americans With Disabilities Act by failing to reasonably accommodate an employee who suffered from diabetes, the Equal Employment Opportunity Commission charged in an ADA lawsuit filed on Sept. 24.

The lawsuit charges that Windstream Communications, a FORTUNE 500 and S&P 500 company, headquartered in Little Rock, Arkansas, denied the employee’s request for a transfer to another shift when she experienced “extreme blood sugar level fluctuations due to interruptions in her sleep patterns” from working the night shift.

“Companies must not force an employee to choose between her health and her job,” said Katharine W. Kores, district director of EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee, and portions of Mississippi. “They must engage in an interactive process to determine if they can accommodate the employee and must do so absent an undue hardship.”

Here’s the EEOC’s announcement of the lawsuit.

Hearing This Week on Overturning NLRB’s “Joint Employer” Ruling in Browning-Ferris Indus. Case

If you are in our nation’s capital on Tuesday, be sure to stop in at Congress where Republicans will take the next step in their drive to overturn the National Labor Relations Board’s “joint employer” decision.

The hearing chaired by Rep. Phil Roe (R-Tenn) of the Subcommittee on Health, Employment, Labor, and Pensions, will take direct aim at the NLRB’s ruling in the Browning-Ferris Industries case, in which the board expanded the joint employer doctrine to include employers who have indirect or potential control over employment conditions.

Under pre-Browning rules, two companies could be joint employers only if they shared actual, direct, and immediate control over the terms and conditions of employment.

According to the Republicans, the new ruling overturned “decades of settled labor policy.” To reverse it, they’ve introduced a bill called the Protecting Local Business Opportunity Act. This legislation would reaffirm that multiple employers must have “actual, direct, and immediate” control over employees to be considered joint employers.

The hearing will convene at 10 a.m. in Room 2261 of the House Rayburn Office Building.


Calif. Court: Uber Can’t Force Arbitration in Dispute Over Whether Ex-Driver is Employee

Ride-sharing service Uber can’t force a former driver into arbitration to determine whether she was an employee or an independent contractor, a state judge in California ruled on Monday.

It’s the latest twist in a case brought by ex-Uber driver Barbara Berwick, who won a ruling in
June from the state labor commission that she was an Uber employee. According to that ruling, Uber “is involved in every aspect of the operation,” vetting drivers, setting standards and establishing nonnegotiable rates. The company also can fire drivers who receive low ratings from customers.

Now a state judge has sided with Berwick in her dispute with the company as to whether her employee status is to be determined by an arbitrator.  In his ruling on Monday, San Francisco Superior Court Judge Ernest Goldsmith found that Uber’s contract is “flatly inconsistent” because it says in one provision that a private arbitrator decides whether a dispute should be resolved in arbitration, but another cause says that the choice is to be made by a judge.

Uber is planning to appeal the ruling to a state appeals court.

EEOC: Employer Fired Employee Based on Information Obtained From Pre-job Physical

mplWatch out for these pre-employment physicals! Information you pick up there could backfire on your if used to make an employment decision.

If the Equal Employment Opportunity Commission allegations pans out,  a medical services provider located in Muskegon, Heights, Michigan finds itself in a legal fix due to how it handled information from such a physical.

According to a just-filed lawsuit by EEOC under the Americans With Disabilities Act, Avis Lane worked for Muskegon Family Care as an outreach enrollment coordinator for over a month when it fired her based on information obtained during her pre-employment physical.

“Firing a qualified employee, who successfully performed the job for over a month, based on information obtained during a physical violates the ADA,” said Laurie Young, regional attorney for EEOC’s Indianapolis District. “Employers cannot use recommendations from a third-party health examiner without determining for itself whether the employee can actually do the job.”

Read more about the lawsuit.

$18M Settlement of OT Violations by Halliburton

Halliburton’s alleged failure to pay overtime to more than 1,000 of its salaried employees nationwide has cost it big time.

The U.S. Department of Labor announced yesterday that the global oil and gas service provider has agreed to pay $18,293,557 to 1,016 employees nationwide after department investigators found Halliburton incorrectly categorized employees in 28 job positions as exempt from overtime.

The company did not pay overtime to these salaried employees — working as field service representatives, pipe recovery specialists, drilling tech advisors, perforating specialists and reliability tech specialists — when they worked more than 40 hours in a workweek, in violation of the Fair Labor Standards Act, DOL alleged. The company also failed to keep accurate records of hours worked by these employees.

DOL’s announcement reminds employers:

Simply paying an employee a salary does not necessarily mean the employee is not eligible for overtime. The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the department’s regulations.

Read more about this case.