Employment LawEmployment Law Update

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EMPLOYEE TIME OFF FOR VOTING.  With election day upcoming, employers should review their policies and applicable state laws concerning employee time off for voting.  Utah law, for example, requires employers to allow any voter to be absent from work on election day for up to two hours between the time the polls open and the time the polls close, provided the employee does not have three or more nonworking hours available to vote during hours when the polls are open.  This means, for example, that an employee is not entitled to leave if he or she gets off work at 5:00pm and the polls close at 8:00pm, because the employee has three hours available to vote.  The law obligates the employee to request the leave of absence before election day and allows the employer to specify the hours during which the employee may be absent, unless the employee requests a leave of absence at the beginning or end of the work shift in which case, such requests must be granted.  Under the Utah statute, time off for voting must be paid.  In a recent article on this topic, SHRM observed that employees who are given time off to participate in civic or community activities may reflect improved job performance as a result, so employers should consider implementing policies calculated to encourage voting even if such leave is not required by applicable state law.

HARASSMENT CLAIMS SURVIVE AGAINST EMPLOYER EVEN THOUGH THE EMPLOYEE FAILED TO REPORT THE HARASSMENT.  In our June 15, 2018 update, we celebrated the birthday of the landmark US Supreme Court cases, which gave rise to the eponymous Ellerth Faragher defense.  That defense allows employers to avoid liability for sexual harassment if the employer can prove it had a policy in place to prevent or address harassment and the allegedly harassed employee did not take advantage of the preventative opportunities afforded by the policy (i.e. by failing to report harassing behavior to management).  A recent case from back east (Minarski v. Susquehanna County) highlights some of the limitations of this defense.  The case involved a part time secretary at the Susquehanna County Department of Veterans Affairs who claimed her supervisor repeatedly touched her in unwelcome ways (hugging her from behind, massaging her shoulders, and touching her face).  The plaintiff also alleged that this supervisor invited her to kiss him under the mistletoe during the holidays and sent her explicit messages using work email.  Eventually, the plaintiff sued her employer alleging a hostile work environment.  The employer asserted the Ellerth Faragher defense by pointing out that the employee failed to timely complain to management and that when the employee finally complained, the employer took appropriate action and fired the offending supervisor.  So, of course, the employer prevailed, right?  Wrong.  Although the plaintiff did not initially complain about the harassment, other employees did complain about similar unwanted touching and in response, the employer merely verbally reprimanded the harassing supervisor.  It did not otherwise discipline him or include a notation in the supervisor’s personnel file until much later, which left the employee to suffer for years.  Given these facts, the Third Circuit Court of Appeals determined that a reasonable jury could conclude that the employer had turned a blind eye towards the supervisor’s pattern of harassing behavior, which disqualified it from the Ellerth Faragher defense and allowed the matter to go forward to trial.  The takeaways from this include at least the following.  First, well-drafted policies and training are important, but they are not a panacea for avoiding harassment liability.  If an employer has reason to know that harassment is occurring, it is obligated to take appropriate action to correct it; this may be true even if the victimized employee fails to complain right away.  Second, an employer should take action that is reasonably calculated to end the harassment.  A verbal warning may be insufficient.  Third, employers should accurately document the steps taken to address allegations of harassment.  Fourth, employers should consider excluding mistletoe from its holiday workplace décor completely.

WE’LL MISS YOU JAZZ BEAR.  Local Utah news outlets recently reported the demise of one of the state’s best-known celebrities—the Utah Jazz Bear… that is to say that the Jazz parted ways with the actor who portrayed the Jazz Bear for the past 24 years.  The Utah Jazz organization apparently owns the Jazz Bear’s likeness and the (presumably very sweaty) Jazz Bear costume because the organization has assured fans that the Utah Jazz Bear character would return—the costume would just be filled by some new anonymous employee.  News sources were mostly silent on the reason for the employee’s departure, except to say that an anonymous source cited an alleged “rift with staff” as the reason for the termination.  Of course, this type of story always stokes the imaginations of employment lawyers (yes, we know we are very lame), causing us to reflect on lessons that can be learned.  In this case, those lessons include at least the following.  First, no employee is indispensable.  In this case, the actor responsible for the Jazz Bear’s hilarious antics and acts of daring for the past 24 years is indisputably very good at his job.  Anyone who has been to a Jazz home game would attest to this and in 2018, the Bear won NBA Mascot of the Year—a title he won twice before. Yet, apparently, the Jazz and the actor parted ways.  Second, well-crafted non-disclosure agreements are important.  In the nearly two weeks since news broke of the Bear’s firing, neither side has divulged the true reasons behind the split.  This silence may very well be the result of a non-disclosure agreement (perhaps as part of a severance agreement), which could serve both sides in this situation.  Third, employers should be mindful of the need for invention assignment agreements.  On his Linkedin page, the actor claims to have “created one of the top and most influential mascots in the NBA.”  While this may be true, it seems that the team, and not the actor, will retain the Jazz Bear’s likeness and costume.  A well-crafted invention assignment agreement can help employers retain valuable intellectual property created by employees during their employment.

YES, ATTENDANCE IS AN ESSENTIAL FUNCTION OF YOUR JOB.  Although it seems straightforward, an occasional struggle for HR personnel, employees, and even courts is the issue of whether regular attendance is an essential job function.  For one thing, the FMLA and the ADA often intersect in ways that trip employers up, particularly with multiple periods of intermittent leave.  A recent case out of New York highlights this issue and gives some hope to employers who (gasp) expect their employees to show up for work.  The case involved a city park maintenance worker who frequently called off work for migraines as well as a variety of other medical problems, including hip pain, ear infections, and an alleged reaction to a flu shot.  In total, he missed 87 out of 194 work days.  Health reasons were not the only cause for the employee’s absences, however.  He also missed work for a job interview, Alcoholics Anonymous meetings, a traffic ticket, and bad weather.  The employer initially accommodated these absences by allowing the employee to exhaust his paid leave entitlements and then allowed him to take leave without pay.  As the problem worsened, managers had a sit-down with the employee to discuss his absenteeism.  During the meeting, the employee complained about his health issues and in the days that followed, the employee stayed home as often as he worked, which prompted the parties to convene another meeting to discuss the employee’s 32 newest absences.  Soon thereafter, he missed three straight days “because of the weather” (winters in New York can be inclement we’ve heard) and he was fired.  The employee sued for disability discrimination under the ADA, but he lost because the court concluded that “regularly attending work is an essential function of nearly every job” and that “reasonable accommodations do not include permitting employees to stay home whenever they feel they cannot come to work.”  While this case was straightforward, extended leave cases should be handled with care in view of a few key principles.  First, while requests for indefinite leave (i.e. requests for leave for a period of unknown duration) are most likely not a reasonable accommodation under the ADA, requests for extended leave may be considered a reasonable accommodation (at least by the EEOC).  Second, employers should avoid rejecting extended leave requests out of hand and should carefully consider the implications of such requests under both the FMLA and the ADA.  Third, employers should handle extended leave requests in a non-discriminatory way that is consistent with company policy.

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