Criminal Background Checks: How They Are Impacted By “Ban the Box” Laws

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By Kathleen J. Jennings (kjj@wimlaw.com)

If your company performs criminal background checks, have you checked to see if there are any state or local laws that restrict things such as the point in the hiring process when you can perform those checks, and how you can use the results to disqualify candidates? And what do you do if one of your employees is arrested? In this Podcast episode, Thom and I talk about these issues. Have a listen: https://www.spreaker.com/user/10949568/cyabanthebox

Quiet Firing: Is This Really A Good Idea?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Everyone is talking about the concept of “quiet quitting, ” but over here at Cover Your Assets, we are also talking about a related issue: Quiet Firing. Tune in to this week’s Podcast to hear how we feel about this passive aggressive approach to managing employees. And find out how “quiet firing” could turn into a constructive discharge or discrimination claim. Have a listen: https://www.spreaker.com/user/10949568/how-is-quiet-firing-related-to-quiet-qui

What Does Your Social Media Presence Say About Your Company?

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By Kathleen J. Jennings (kjj@wimlaw.com)

I was looking around a popular business oriented social media site, and the content that some companies posted caught my trained employment lawyer’s eye. One, in particular, posted a lot of photos of employees who were all uniformly young (in their 30s and younger), energetic, and white.

I see a couple of issues here. First, what kind of message is this company sending to prospective employees? The message certainly appears to be that they only hire able-bodied young white employees. In this highly competitive employment market especially, it is not in a company’s best interest to discourage entire groups of people from even applying for available jobs.

Second, these social media posts could be used as evidence in a discrimination case. For example, if an African American employee files a lawsuit for employment discrimination, I could see the plaintiff’s lawyer offering the social media posts as evidence that the company does not value diversity, or that it does not value persons in protected classes. Because if the company valued those folks, it would include them in its public presence, right?

Think of your company’s social media presence as evidence that can be used in your favor or against you. That “youthful vibe” could be used as evidence of age discrimination. That “tough, macho vibe” could be used as evidence of gender discrimination. In other words, if you are not careful, your vibe could be the thing that attracts a lawsuit against your company.

The takeaway: Inclusivity is the key to attracting and retaining the best talent in this job market. May sure that your social media presence isn’t repelling entire classes of applicants or attracting lawsuits.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

They Say It’s Your Birthday!

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By Kathleen J. Jennings (kjj@wimlaw.com)

This week, on the Cover Your Assets Labor and Employment Law Podcast, Thom and I discuss the recent case involving an employee who successfully sued his employer because the employer held a birthday party in his honor. We go beyond the headlines and discuss how this litigation might have been avoided. Have a listen!

Dealing with An Employee’s Request for Leave As A Reasonable Accommodation

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By Kathleen J. Jennings (kjj@wimlaw.com)

[Have you listened to the Cover Your Assets Labor and Employment Podcast? Listen to it here!]

The Americans With Disabilities Act (ADA) prohibits discrimination against persons with disabilities. What sets it apart from other anti-discrimination statutes is the requirement that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. [Title VII does require some reasonable accommodations for persons with closely held religious beliefs, but the standard is slightly different.]

So what is a “reasonable accommodation?” It is the stuff of much litigation, for starters.

The EEOC tells us that a reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Basically, the determination of what is a reasonable accommodation must be made on a case-by-case basis through what is known as the interactive process–a conversation between the employer and employee about what accommodation(s) would help the employee perform the job and the impact on the employer if it provided such accommodations. And I shouldn’t have to tell you–document every step of that process.

It is important to note that an employer doesn’t have to provide an accommodation if doing so would cause “undue hardship” to the employer. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

A recent example of a requested accommodation that was simply not reasonable comes to us from Utah. In Anderson v. Zions Bancorporation N.A., No. 2:19-cv-00771, 2022 BL 66589, 2022 Us Dist Lexis 35716 (D. Utah Feb. 28, 2022), the plaintiff alleged that his former employer violated the ADA by denying his request for a reasonable accommodation, retaliating against him, and wrongfully terminating him after he requested a leave of absence due to depression and anxiety. The plaintiff requested almost one year of continuous leave as an accommodation for his mental health issues, and the employer found such a lengthy amount of leave to be an undue hardship. The court agreed.

We have seen other cases where employees seek leave without any end point, and such indeterminate leave is also considered to be an undue hardship for an employer.

If an employee requests leave as a reasonable accommodation, it is important for the employer to nail down exactly when the employee expects to come back to work. (As an aside, you should also determine if FMLA applies). If the employee doesn’t tell you, ask! Give them a deadline to provide the information. Then determine if the amount of leave is reasonable or presents an undue hardship. How long can you keep this job open? How long can other employees cover for this person?

If the employee does not come back on the anticipated date, the employer should follow up and determine if the employee is ever going to come back to work. If they don’t respond, they have essentially abandoned the job.

And speaking of FMLA, if an employee does not come back to work at the expiration of FMLA leave, it is generally not a good idea to terminate them immediately. Because if the reason that the employee needs the leave is because they have a disability, then the the ADA will apply and you need to commence the interactive process to determine if they need a reasonable accommodation, such as more unpaid leave.

This can get pretty complicated, so it is best to talk these issues over with trusted employment counsel.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

When is COVID-19 Considered a “Disability” Under the ADA?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the EEOC issued some new guidance that purports to clarify circumstances in which COVID-19 may or may not cause effects sufficient to meet the definition of “actual” or “record of” a disability for various purposes under Title I, as well as section 501 of the Rehabilitation Act. However, finding clarity on anything related to the ADA is a challenge, to say the least.

As an initial matter, the EEOC tells us that COVID-19 is not always considered to be a “disability.” Rather, each case must be examined on its own facts.

The ADA’s three-part definition of disability applies to COVID-19 in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

  1. “Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);
  2. “Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or
  3. “Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

How does this apply to COVID-19? Depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

Keep in mind that a person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA.

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

  • An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
  • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
  • An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.
  • An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

  • An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
  • An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.
  • As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

To further complicate matters, in some cases, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA. For example:

  • An individual who had COVID-19 develops heart inflammation. This inflammation itself may be an impairment that substantially limits a major bodily function, such as the circulatory function, or other major life activity, such as lifting.
  • During the course of COVID-19, an individual suffers an acute ischemic stroke. Due to the stroke, the individual may be substantially limited in neurological and brain (or cerebrovascular) function.
  • After an individual’s COVID-19 resolves, the individual develops diabetes attributed to the COVID-19. This individual should easily be found to be substantially limited in the major life activity of endocrine function.

In some cases, an individual’s COVID-19 may also worsen the individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting. For example:

  • An individual initially has a heart condition that is not substantially limiting. The individual is infected with COVID-19. The COVID-19 worsens the person’s heart condition so that the condition now substantially limits the person’s circulatory function.

The situations in which an employer might “regard” an applicant or employee with COVID-19 as an individual with a disability are varied. Some examples include:

  • An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months. The employer could not show that the impairment was both transitory and minor.
  • An employer would regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms. In these circumstances, the employer could not show that the impairment was both transitory and minor.

It is possible that an employer may not have engaged in unlawful discrimination under the ADA even if the employer took an adverse action based on an impairment. For example, an individual still needs to be qualified for the job held or desired. Additionally, in some instances, an employer may have a defense to an action taken on the basis of the impairment. For example, the ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others.

Of course, an employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition to disallow the employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

The Takeaway: Most people who become sick with COVID-19 are not going to have a “disability” as defined by the ADA. However, there is a small subset of people, such as the “COVID long-haulers” who may be affected by COVID-19 to such an extent that they have a disability, as defined by the ADA, and therefore, those folks are protected from unlawful discrimination. This should be determined on a case-by-case basis.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

The EEOC Updated Its COVID Vaccination Guidance and Confirmed What We Already Knew About Political Objections to Vaccination

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By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the EEOC updated its Guidance regarding COVID-19, specifically addressing employee religious objections to employer vaccination policies. What we learned is something we pretty much already knew; at least, it is the advice that we have been giving to clients, namely, that a political objection to vaccination is not protected by Title VII.

Title VII prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation.

The EEOC reminds us that definition of “religion” under Title VII protects nontraditional religious beliefs that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it. By contrast, Title VII does not protect social, political, or economic views, or personal preferences. Thus, objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.

That’s right, political objections to vaccines are not protected by Title VII. We already knew that, but it is nice to hear from the EEOC.

The EEOC also tells us that when making a request for a religious accommodation, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement. Then the employer and employer must engage in the “interactive process” to determine if a reasonable accommodation exists.

It is important for employees to understand that a request for a religious exception from a vaccination requirement does not mean that the employee receives an automatic pass. In some cases, the employer may not be able to accommodate an employee’s refusal to take a vaccination without creating an undue hardship to its business. Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

Pro Tip: Any employer that requires its employees to be vaccinated (either because the law requires it or otherwise) should develop a form that employees and applicants can utilize to request a religious or medical exemption to vaccination.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

It’s Not A Good Idea To Admit To Discrimination in a Text Message

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By Kathleen J. Jennings (kjj@wimlaw.com)

Sometimes, I just have to shake my head when I read about an employment decision gone horribly wrong. And this one is really a head shaker: according to a lawsuit just filed by the EEOC, a manager at a Franklinton, Louisiana, restaurant fired a newly-hired worker after sending her a social media message saying, “I’m not gonna be able to hire you. I didn’t realize that you were expecting a baby.” When the worker reapplied for work several months later, the restaurant wrote “pregnant” on her application and did not rehire her.

Now, this is just the EEOC’s side of the story, so the restaurant may have an entirely different version of the facts. But I find it unlikely that the EEOC is going to fabricate the existence of a social media message wherein the manager admits that he is discriminating on the basis of pregnancy, which is a violation of Title VII of the Civil Rights Act.

Here’s the thing: it is unlawful for an employer to fire an employee simply because she is pregnant. Furthermore, an employer cannot make assumptions about what a pregnant worker can or cannot do.

And please–do not fire (or unhire) employees via social media messages or text messages. Just don’t. It is not professional, and the shorthand often utilized in those media can confuse your message. Any time you put something in writing regarding an important employment decision, such as hiring, firing, promotion, or discipline, expect that it will be shown to an attorney, maybe the EEOC, or ultimately, a jury. How will your message look to someone who doesn’t know you or your business?

Having an attorney review these types of communications in advance will save the company money in the long run. Let’s face it: if the restaurant manager above had let the company’s attorney review his social media message to the pregnant worker before he sent it, I like to think that there is a high probability that the message would have said something completely different, and maybe the EEOC wouldn’t be suing the company. So asking an attorney to review these communications in advance can be money well spent.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Religious Liberty vs. LBGTQ Rights: Narrow Supreme Court Decision Fails to Resolve Many Questions

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By Kathleen J. Jennings (kjj@wimlaw.com)

One of the most eagerly anticipated decisions coming from the U.S. Supreme Court this term was Fulton v. Philadephia, a case involving a Catholic charity’s challenge to a Philadelphia ordinance that excluded it from part of the city’s foster-care program because the charity would not help place children with same-sex couples. The charity argued that the ordinance violated its First Amendment right to religious freedom, and the U.S. Supreme Court, in a unanimous decision, agreed. However, the Court’s decision focused very narrowly on the ordinance at issue and did not address the bigger question of what happens when religious liberty and anti-bias laws collide. Thus, it is likely that we will see more litigation on these issues.

What does this decision mean for employers? Not a heck of a lot–yet. Last year, the Supreme Court ruled that Title VII prohibits employment discrimination on the basis of sexual orientation and sexual identity. But that case did not answer any questions about the possibility of religious defenses to discrimination against LBGTQ employees and applicants. The ultimate question is this: Is there a Constitutional right to discriminate that would override Title VII in some context? 

Certain employers can invoke the Religious Freedom Restoration Act to defend against discrimination lawsuits brought by the government. Religious organizations, such as churches and religious schools, are permitted to give employment preference to members of their own religion under a Title VII exception. Religious groups are likely to continue pushing the boundaries of religious freedom. Whether that push will infringe upon the hard-won rights of LGBTQ people to be free from discrimination remains to be seen.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.