Category: Disability Discrimination

If You Want to Report by Telegraph, Do it Before January 1st

telegraphThough email has been an effective and accepted form of communications for the last few decades, the Department of Occupational Safety and Health Standards did not accept reports of injury, illness, or death via email…until now.

Signed by Governor Jerry Brown last month, AB 326 will amend Section 142.5 of the Labor Code to allow said reports to be made electronically. Previously the existing law provided that reports be made either on the phone or via telegraph. Clearly the law had not been touched for many, many years.

The new revision will replace telegraph with email and removes all language pertaining reports done via telegraph. Too bad, we wanted to see a return of Morse Code.

Source: Assembly Bill 326

The Pitfalls of Using Social Media to Hire—Or Not Hire—Prospective Employees

Carol Miaskoff of the Equal Employment Opportunity Commission (the “EEOC”) recently spoke on a panel at a Federal Trade Commission Workshop regarding the use of social media to screen employment candidates.

Miaskoff warned employers to be cognizant of using social media because the company can uncover a variety of information that alludes to the applicants’ protected statuses (i.e. race, gender, or disability). In some cases, the decision not to hire someone based on their social media account can be interpreted as a violation of labor law, especially if a company decides not to hire someone once discovering their sexual orientation or that the prospective employee is pregnant, as an example.

Employers must not use prospective workers’ social media sporadically, but instead, should utilize it consistently with all applicants. Again, the employer may be at fault for using social media discriminatorily, but some may argue that employers can use social media for good cause.

Source: National Law Review

Image Source: Geekfairy.co.uk

Your Private Information Is Just That: Private

Sometimes, your boss knows things about you that you don’t want your coworkers to know.  Maybe you have a disability, or are going through marital troubles, or are being treated for bipolar disorder.

There are often good reasons you have to tell your supervisor things like this.  Maybe you explained why you had to miss work one day, or why you were so upset at work.  Just because you tell your boss, however, doesn’t mean it’s okay for him or her to tell everyone else.

California has a law that makes it illegal to publicly disclose private facts in certain situations.  For Melissa Ignat, the law became a reality when she missed work because of her bipolar disorder, and her boss shockingly decided to tell all of her coworkers about it while she was out.  Ms. Ignat had not told her coworkers about her bipolar disorder and was very upset that her supervisor had done so.

Worse, her coworkers started avoiding her and treating her differently.  One even asked the boss if Ms. Ignat was going to “go postal” and harm them because of her disorder.

It is not just poor managing or gossip for a supervisor to share your private information – it can even be against the law.  Employees are supposed to be able to feel comfortable talking to their bosses when there is something going on in their lives that may affect their work.  Bosses like Ms. Ignat’s, however, are one of many reasons employees often feel uncomfortable talking to their supervisors about important topics.

We will have to wait until her trial against the company next year to find out whether a jury agrees that Ms. Ignat’s boss broke the law, but if you have been the victim of a supervisor’s public disclosure of your private information, you don’t have to wait that long.  Contact an Aegis attorney if Ms. Ignat’s situation sounds familiar to you.

Quarrelling Lovers’ Unstable Behavior Not Enough To Warrant Employer’s Demand For Medical Examination

White Lake Ambulance Authority, in fair Michigan, where we lay our scene. The tiffs between two Emergency Medical Technicians, one married, and one not, stirred up action in the Sixth Circuit Court of Appeals.

Emily Kroll was apparently infatuated with her coworker Joshua Easton, who was married. The pair frequently quarreled in person, via e-mail, text messages and phone calls. Ms. Kroll, who seemed to be the party most jolted by the arguments started exhibiting erratic behavior, including screaming and crying. Although most of Ms. Kroll’s unstable behavior took place outside of working hours, the Director of the Ambulance Authority for which the couple worked for grew concerned and ordered Ms. Kroll to seek counseling if she wanted to keep her job. Naturally, after she left the company, she sued.

After losing on summary judgment, Ms. Kroll appealed. The Sixth Circuit granted Ms. Kroll a jury trial and remanded. The reasoning? Under the Americans with Disabilities Act (“ADA”), an employer cannot require an employee to have a medical examination unless the examination is job-related and consistent with business necessity. Despite exhibiting some unstable behavior, including refusing to administer oxygen to a patient because she was told to do so by Mr. Easton, as well as talking on the phone while driving the ambulance, the Court found that Ms. Kroll’s erratic behavior did not meet the threshold for an employer-mandated medical examination.

Purloined Potty Privacy

bathroomThis falls under the heading of “be glad you don’t work here”:  In Chicago, Illinois, a company has started monitoring the time employees spend in the bathroom and disciplining employees it thinks use the restroom too much.

The company requires employees to swipe a card on a card reader when they enter and exit the bathroom, and keeps track of how much time each employee spends in the toilet.  If an employee spends more than 60 minutes in the bathroom in ten working days – or about 6 minutes per day – the employee can be given a disciplinary warning for “excessive use of the bathroom.”  On the other hand, an employee who does not use the restroom at all during a workday can earn a dollar on a gift card, for up to $20 per month.

In California, there would be several problems with a potty policy like this.  California goes a lot further than many states to protect employee privacy.  Keeping a list monitoring all line employees’ bathroom time seems to be a fairly major invasion of the employees’ privacy, and while there are no laws directly addressing this situation, there is a good chance the courts would agree the employer’s policy goes much too far.

Even worse, the potty policy could require employees to give their employers private, medical information.  There are numerous medical and disability-related reasons an employee might not be able to comply with the 6-minute limit or might need more than one or two bathroom breaks in a day, from Crohn’s Disease to medication-related incontinence issues, to nausea from pregnancy or even cancer-related chemotherapy.  Not only would the potty policy discriminate against these people, which would be unlawful, but it also might require them to explain their medical conditions simply to keep their jobs.  Normally, employers are very limited in what kinds of medical information they can ask, but a policy like the one the Chicago company has would basically require employees to volunteer the information.  A California company almost certainly would not be able to get away with such taboo toilet tracking.