Anxiety and the ADA

Q: An employee in my company has requested intermittent leave as an accommodation for what he claims is a debilitating “anxiety,” but he has no job performance issues and seems fine to me. Are we required to provide a reasonable accommodation under the ADA for anxiety?

A: The question of whether an employee’s anxiety constitutes a disability under the Americans with Disabilities Act (“ADA”) is rather tricky for employers. Most people experience some level of anxiety on the job and in every day life, but in the absence of clear behavioral indicators, it may be difficult for employers to assess whether an employee’s anxiety rises to the level of a disability as defined by the ADA. However, as a recent decision from a federal court in the Middle District of Tennessee demonstrates, to enjoy the protections of the ADA, your employee’s accommodation request must be grounded on something more than his generalized claim that he has a “debilitating” anxiety disorder.

In EEOC v. West Meade Place LLP, the U.S. Equal Employment Opportunity Commission (“EEOC”) alleged that the defendant, a nursing home, failed to provide a reasonable accommodation to an employee who suffered from an anxiety disorder, and then fired her because of her disability.

The ADA prohibits discrimination on the basis of disability with respect to hiring, compensation, discharge, and other terms, conditions, and privileges of employment. In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show that (1) she is disabled, (2) she is otherwise qualified to perform the essential functions of a position, with or without accommodation, and (3) she suffered an adverse employment action because of her disability.

In West Meade Place, the employer argued that the plaintiff could not establish the first element of the legal standard—that she was disabled. Under the ADA, a “disability” is defined in three ways: (1) a physical or mental impairment that substantially limits one’s ability one or more of the individual’s major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. Reviewing the evidence in light of this definition, the court found that the plaintiff was unable to satisfy her prima facie burden and granted summary judgment to the defendant.

First, the plaintiff could not show that her condition substantially limited her ability to perform her job. The EEOC’s plan to rely on testimony from the employee’s physician on this point backfired during the physician’s deposition. After stating on an FMLA form that the employee could not work during her anxiety “flare-ups,” the physician admitted that, in lieu of a medical opinion, she signed the FMLA form simply because the employee asked her to do it. Given the scant medical evidence to support plaintiff’s medical condition, the court rejected the agency’s argument that one or more of the employee’s major life activities were “substantially limited” by her anxiety.

In addition, the plaintiff’s contradictory testimony undermined the EEOC’s position that the employee had a record of impairment. On the forms she completed at the outset of her employment, she indicated that she had used an anti-anxiety medication and affirmed that she had issues with anxiety. However, she also wrote on the forms that she had never been treated for anxiety. As such, the court found the onboarding documents failed to establish that the plaintiff had a history of anxiety of such severity that it substantially limited on or more of her major life activities.

Likewise, the EEOC’s argument that the plaintiff was regarded as having an impairment by the employer failed. The court explained that, rather than simply alleging that the employer was aware of her symptoms, the plaintiff must instead show that the employer regarded her as “impaired” within the meaning of the ADA. An employee’s statement to management that she suffered from anxiety may not be enough. As the nurse manager explained when asked whether she was aware that the plaintiff had a disability, just because an employee “said she had anxiety, that doesn’t make it a disability. I have anxiety. It’s not a disability.”

Given that the plaintiff could not meet the ADA’s definition of “disabled,” she failed to establish a prima facie case of either on either her discrimination or failure-to-accommodate claims.

By nature, anxiety is somewhat difficult to assess, and thus employers must take care when responding to an employee’s request for an accommodation for an anxiety condition. In the absence of supporting evidence, an employee’s bald assertion that he or she suffers from an anxiety disorder probably is not enough to meet the ADA standard. Thus, an employer should carefully analyze any documents provided by the employee’s health care provider to determine whether the diagnosis indicates that the anxiety amounts to a “mental impairment” as contemplated by the statute. Also, employers should conduct a thorough review of the employee’s file to ascertain whether the employee identified the medical condition at the outset of employment or afterwards, thereby putting the employer on notice. In addition, employers should take a holistic view of the employee’s overall engagement with the company to determine whether the company regarded the employee as disabled. As always, to mitigate the risk of liability, employers should thoroughly review the facts and available documents with an attorney who has experience in analyzing ADA issues, prior to denying an employee’s request for an ADA accommodation.

Rogers Stevens

Deadline Looms for Employers to Provide CCPA Notices

Q.  What are my company’s obligations under the California Consumer Privacy Act?

A. The California Consumer Privacy Act (CCPA) will take effect on January 1, 2020. On or before that date, businesses that employ California residents, retain California residents as independent contractors, or receive job applications from California residents must provide those individuals with notices detailing (1) the categories of personal information that the employer collects about them and (2) the purposes for which the personal information will be used. The CCPA requires that businesses provide these notices “at or before the point of collection” of personal information.

“Personal information” is defined broadly in the CCPA and includes items such as Social Security numbers, bank account numbers, education and employment history, characteristics of a protected classification under California or federal law (such as race, religion, gender, disability and age), biometric information, medical and health insurance information, and certain metadata, such as device IP address. In the employment/independent contractor context, businesses collect personal information for purposes such as onboarding, conducting background checks, managing the employment/contractor relationship (including payment of wages/fees, time records, direct deposit authorization, etc.), and preparing legally required records (including I-9 and EEO-1 forms). Businesses should consider incorporating the CCPA notice in the following documents and locations, as well as posting it where other notices are posted:

  • employee handbooks
  • offer letters
  • other new hire paperwork
  • employment agreements
  • restrictive covenant agreements
  • online job application portals.

In addition to requiring notice to individuals, the CCPA’s notice requirement extends to “personal information” related to households, which would include medical and health insurance information about an employee’s beneficiaries. Businesses should assess how to comply with their obligation to notify households in the absence of specific guidance, which hopefully will be forthcoming.

Although many employment-related requirements in the original CCPA were suspended until January 1, 2021 by the CCPA amendments, the notice requirement and the private right of action in the event of a data breach are still in effect. Consequently, businesses should properly secure employee, applicant and independent contractor-related personal information to mitigate risk of liability, and develop and distribute mandated notices at or before all points where employee, job applicant and independent contractor personal information is collected. Businesses also should consider what operational steps will be necessary to afford California resident employees, applicants and independent contractors full CCPA rights as of January 1, 2021. Pepper Hamilton LLP can assist businesses in complying with the CCPA.

Sharon R. Klein, Susan K. Lessack, Alex C. Nisenbaum and Jeffrey M. Goldman

Ninth Circuit Finds Franchisors Not Joint Employers of Employees of Franchisees Absent Direct Control Over Wages, Hours and Working Conditions

Q.  As a franchisor, could I potentially be held liable for the wage and hour violations committed by franchisees of my organization against their employees?

A.  On October 1, 2019, a three-judge panel of the Ninth Circuit Court of Appeals ruled that McDonald’s Corporation was not liable as a joint employer for any alleged wage and hour violations committed against its California franchisee’s employees because McDonald’s did not exercise enough control over them.

In Salazar v. McDonald’s Corp., a class of approximately 1,400 restaurant workers at McDonald’s franchises in California alleged that they were denied overtime premiums, meal and rest breaks, and other benefits in violation of the California Labor Code. They argued that McDonald’s and itsCalifornia franchisee were joint employers such that McDonald’s should be held liable for the violations. In support of their joint employer theory, the restaurant workers conveyed that McDonald’s required the franchisees to use specific computer systems for timekeeping which allegedly caused them to miss out on receiving overtime pay, and to send their managers to McDonald’s-sponsored trainings, which included topics on wage and hour policies. On the other hand, the facts also showed that the California franchisees were solely responsible for setting wages, interviewing, hiring, firing, supervising, and paying all of its employees.

The Ninth Circuit ultimately determined McDonald’s was not a joint employer of its franchisees’ workers for purposes of wage and hour liability. Its decision narrowly focused on the California Supreme Court’s 2010 ruling in Martinez v. Combs, which addressed three alternative definitions for determining whether an employment relationship exists: (1) exercising “control” over employees’ wages, hours, or working conditions; (2) “suffering or permitting” employees to work; or (3) creating a common law employment relationship. Under the “control” definition, the Ninth Circuit held that McDonald’s did not have the necessary control over “day-to-day aspects” of working conditions, such as hiring, direction, supervision, or discharge; rather, McDonald’s only had direct control over quality, such as operational branding. It also found that McDonald’s did not fall under the “suffer or permit” definition, which “pertains to responsibility for the fact of employment itself. The question under California law is whether McDonald’s is one of Plaintiffs’ employers, not whether McDonald’s caused Plaintiffs’ employer to violate wage-and-hour laws by giving the employer bad tools or bad advice.” For similar reasons, the Ninth Circuit panel held that McDonald’s could not be considered an employer under California common law because its quality control and maintenance of brand standards was not evidence that it had the requisite level of control over the workers’ employment to be deemed a joint employer.

The Ninth Circuit also rejected plaintiffs’ novel legal argument that McDonald’s was liable for wage and hour violations under an ostensible-agency theory, as it noted the term “agent” under state law only applies to an employer that exercises control over the wages, hours, or working conditions of workers, which was not the case here. In addition, the Court ruled that the workers’ negligence claim based on McDonald’s alleged failure to prevent the violations failed, as the claim was preempted by California’s wage and hour statutes and plaintiffs could prove neither the damages nor the duty elements required under a negligence theory of liability.

The Ninth Circuit ruling is significant for franchisors and other affiliated companies of employers, as it clarifies that a joint employment relationship under California wage and hour laws primarily depends on whether the company exerts direct control over day-to-day working conditions, such as hiring, direction, supervision, and discharge. The decision was issued only one week after a California appellate court ruled that Shell Oil Products US was not a joint employer for purposes of California wage and hour violations based on the same test employed by the Ninth Circuit. In April 2019, the U.S. Department of Labor proposed the enactment of a similar control test for determining joint employer liability under the Fair Labor Standards Act. Nonetheless, companies are advised to consult with experienced labor and employment attorneys in order to stay abreast of the evolving tests used to determine joint employment liability.

Jonathan Gilman

 

NLRB Issues a Series of Employer-Friendly Decisions

Q.  I heard there have been some significant National Labor Relations Board decisions recently. What do I need to know about them?

A.  Over the past few months, the Board’s Republican majority has issued a series of employer-friendly decisions. They involve various topics, including expansion of employer property rights, classification of workers as independent contractors, and the scope of a proper petitioned-for unit.  These decisions demonstrate it is likely the Board will continue to overturn union-friendly precedent and issue decisions that allow employers more business flexibility.

Below is a summary of some of these key opinions.

Protection of Employer Property Rights Expanded

The Board has issued a series of decisions that expand an employer’s property rights in connection with non-employee union activity. For example, in Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts (368 NLRB No. 46), the Board analyzed whether a property owner violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by barring the off-duty employees of an on-site contractor from leafleting on its property.

The majority determined that contractor employees generally are not entitled to the same Section 7 access rights as the property owner’s own employees. In reaching this decision, the Board adopted a new standard, holding that a property owner may exclude from its property off-duty employees of an on-site contractor seeking access to the property to engage in Section 7 activity unless (1) those employees work both regularly and exclusively on the property, and (2) the property owner fails to show that they have one or more reasonable alternative means to communicate their message without trespassing on the employer’s property (i.e. use of adjacent public property, newspapers, radio, television, billboards, and social media).

Soon after the Bexar County decision, the Board went a step further in Kroger Limited Partnership I Mid-Atlantic (368 NLRB No. 64), ruling that businesses may lawfully limit the rights of non-employee union supporters to access company property that otherwise is open to the public.  Specifically, it found that Kroger did not violate the NLRA when it removed non-employee union supporters from the parking lot of a Kroger store even though the store permitted civic and charitable organizations to solicit and distribute in the parking area and in front of the store.

In reaching this decision, the Board noted that based on precedent, to establish that a denial of access to non-employee union agents was unlawful, a party must prove that an employer denied access to other non-employee union agents while allowing access to other non-employees for activities similar in nature to those in which the union agents sought to engage. The majority further stated that, consistent with this standard, an employer may deny access to non-employees seeking to engage in protest activities on its property while allowing non-employee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities.  The Board found that Kroger’s actions were lawful because Kroger had a fundamental property interest in its premises that allowed it to exclude the Union’s solicitor and because the Union’s solicitations were not sufficiently similar in nature to other on-premises charitable, civic or commercial activities that Kroger had previously allowed.

These decisions are demonstrative of the trend toward allowing an employer greater flexibility to regulate non-employee access to the employer’s property under the NLRA. In light of these decisions, employers may distinguish between non-employee activities they will allow and will not allow on their premises.

Worker Misclassification Not a Violation

Proper classification of workers is a fundamental issue under federal labor laws because only statutorily defined “employees” are covered under the NLRA. Under Section 2 of the Act, independent contractors are specifically excluded from the protections afforded to employees.   Employee vs. independent contractor classification issues often arise in the context of determining who is eligible to vote in a union election and in evaluating whether certain workers are protected by Section 8(a)(1) of the NLRA.

In Velox Express, Inc. (368 NLRB No. 61), the Board addressed whether an employer’s misclassification of drivers as independent contractors was a violation of Section (8)(a)(1).  Velox Express operated a courier service and engaged drivers that it classified as independent contractors.  It terminated one of its drivers who, in turn, filed an unfair labor practice charge with the NLRB contesting the lawfulness of her discharge and alleging that her former employer also violated the NLRA by misclassifying her and her coworkers as independent contractors.

The full Board unanimously adopted the Administrative Law Judge’s conclusion that Velox Express failed to establish that its drivers are independent contractors. However, the Board reversed the judge and dismissed the allegation that Velox Express independently violated Section 8(a)(1) by misclassifying its drivers as independent contractors.  It held that an employer’s misclassification of its employees as independent contractors, standing alone, does not violate the NLRA.  The Board explained that an employer’s communication to its workers of its legal opinion that they are independent contractors does not, in and of itself, inherently threaten that those employees are subject to termination or other adverse action if they exercise their Section 7 rights or that it would be futile for them to engage in union or other protected activities.  The communication of that legal opinion is therefore privileged by Section 8(c) even if the employer is ultimately mistaken.

This case is one of a few recent case developments by the Board which positively affects employers faced with independent contractor issues. It demonstrates that this current Republican majority does not disfavor independent contractor relationships.  As a result of this decision, employers who genuinely believe their workers to be independent contractors may share that belief with their workers, even if it ultimately turns out to be wrong, without fear of being prosecuted by the Board’s General Counsel, provided the statements are not expressly or implicitly linked to the workers’ engaging in NLRB protected activities.

Limits to “Micro-Unit” Strategy

In The Boeing Company (368 NLRB No. 67), the Board clarified the traditional community-of-interest test for determining whether “micro-units” of employees within a larger workforce can organize on their own.   In that case, the union attempted to utilize a “micro-unit” strategy to target a petitioned-for unit made up of only two job classifications from a significantly larger workforce.  The Board concluded that the petitioned-for unit was not an appropriate unit for purposes of conducting a union election.

The Board set forth a clarifying, three-step analysis for determining whether a petitioned-for unit is appropriate. Under that analysis, the Board will consider:

  • Whether the members of the petitioned-for unit share a community of interest with each other;
  • Whether the employees excluded from the unit have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members; and
  • Guidelines the Board has established for appropriate unit configurations in specific industries.In reaching its decision, the Board found that the mechanics in the petitioned-for unit did not share an internal community of interest and did not have sufficiently distinct interests from those employees excluded from the petitioned-for unit. The Board also concluded that there were no appropriate-unit guidelines specific to the employer’s industry.This decision is an indication that smaller units will face increased scrutiny and may be easier for employers to challenge.

Leigh McMonigle

Comments on Social Media about an Employee’s National Origin Could Lead to Allegations of Discrimination

Q: Over the summer, I saw that President Trump tweeted that four minority Democrat congresswomen should “go back” to where they came from. What Human Resources lessons can be learned from the President’s tweet?

A: In July 2019, President Trump tweeted that certain Democrat congresswomen “who originally came from countries whose governments are a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world” should “go back” to the “totally broken and crime infested places from which they came.” The President affirmed that he was referring to Representatives Ayanna Pressley (D-MA), Ilhan Omar (D-MN), Alexandria Ocasio-Cortez (D-NY), and Rashida Tlaib (D-MI).  All are U.S. citizens, all are minorities, and only one was actually born outside the United States.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination and harassment on the basis of race, color, sex, religion, and national origin. As many commentators have noted, U.S. Equal Employment Opportunity Commission (EEOC) guidance specifically provides that the following types of conduct are examples of harassment based on national origin: “insults, taunting, or ethnic epithets, such as making fun of a person’s foreign accent or comments like, ‘go back to where you came from,’ whether made by supervisors or by co-workers.”  If particularly severe or pervasive, such conduct could rise to the level of unlawful harassment. However, a company does not need to wait for an employee’s conduct to become illegal before taking action.

While we do not take a position on the politics of the current administration, the President’s tweets, if made by a manager or coworker, could be considered a Title VII violation or a violation of a company’s nondiscrimination and anti-harassment policies. In fact, there are numerous cases where companies faced significant liability as a result of employee comments similar to those made by the President.  In just one example from 2012, a California medical center paid nearly $1 million to settle a national origin discrimination suit where Filipino-American hospital workers alleged that they were told to “go back to the Philippines.” See also Cerezo-Martin v. Agroman, 213 F. Supp. 3d 318 (D.P.R. 2016) (denying defendant’s summary judgment motion as to plaintiff’s hostile environment claim where there was evidence that plaintiff was repeatedly told “to ‘go back to [his] country’ and to stop taking jobs away from Puerto Ricans.”); Brewster v. City of Poughkeepsie, 447 F. Supp. 2d 342 (S.D.N.Y. 2006) (trial court refusing to overturn jury verdict for plaintiff on a national-origin based hostile environment claim where there was testimony that defendant’s employees said to plaintiff “Speak English. Go back to your own country if you want to speak Spanish. You’re in our country.”

In addition, the fact that discriminatory comments may be made outside of the workplace on social media neither insulates an employer from liability nor protects an employee who may have violated company policies.

But wait—what about free speech?

Despite what many employees may think, in nearly all instances, the First Amendment does not apply in the private sector workplace and workers are afforded no protection for their speech—especially speech that is harassing or discriminatory.

If an employee or supervisor in your workplace makes comments similar to those made by the President, your Human Resources Department should conduct a thorough investigation and then take prompt remedial action—up to and including termination—if it is determined that company policies were violated. Failure to act could result in your company facing an EEOC charge or lawsuit for national origin-based discrimination or harassment. One of the best ways to prevent discriminatory comments and behavior from occurring in the workplace is through preparation and training. The attorneys in Pepper Hamilton’s Labor and Employment Practice Group are here to help you update non-discrimination and anti-harassment policies, provide training to employees and managers, assist with investigations, and provide advice when employees make insensitive remarks.

Lee Tankle