THE 3-HEADED MONSTER: ADA, FMLA, AND WORKERS' COMP

      The interplay between the ADA, FMLA and workers' compensation laws continues to confound many human resources professionals and lawyers. Ill or injured employees may have a variety of overlapping, and even seemingly inconsistent, rights under each of these laws. In large part, this is because each law serves a different purpose, and each purpose must be honored.

      The difficulty most often comes not from the particular complexities of these laws, but from the flawed notion that one must know which law takes precedence over the others. Many HR professionals and lawyers are determined to construct and memorize a matrix of policies and contingency plans to address every anticipated scenario involving these laws. This cannot be done feasibly, and trying turns the process of handling these situations from a straightforward (albeit sometimes multi-step) process into a nearly impossible one.

      The key to handling these situations is to recognize at the outset that no law takes precedence over the others. The distinct purpose of each law must be met in each situation. Thus, these situations are handled best and most easily by determining the employee's rights under each law separately, rather than collectively. Allow the employee to exercise applicable rights under each law to the maximum extent in each situation. Where the laws present seemingly inconsistent rights for the employee, allow the employee to exercise those rights as he or she elects, rather than how the employer wants them exercised. This is nothing more than these laws require.

      Example: Employee has a chronic back condition posing a substantial limitation in his ability to lift and bend. He can normally do his job duties. However, he injures his back at work further limiting his ability to lift and bend. Now he cannot perform the essential functions of his job for an unforeseeable period. The prognosis is for some permanent residual effect.

• Employee initially needs 14 weeks out of work. Does he get this time?

  FMLA:	Employee is eligible for a maximum of 12 weeks leave. The employer can deny Employee the last 2 weeks of leave.
  ADA:	If the last 2 weeks of leave do not pose an undue hardship on the employer, it must allow those 2 weeks as a reasonable accommodation.
  WC:	If ordered by Employee's treating physician, Employee would be entitled to the time off with compensation benefits.

• After 14 weeks off, Employee wants to return to his same job. Does he get it?

  FMLA:	Employee is not entitled to his prior job, or to an equivalent one, after expiration of his 12 weeks of leave.
  ADA:	Employee would be entitled to return to his same job, unless doing so would pose an undue hardship on the employer.
  WC:	Generally, Employee gets his job back, if it is available.

• What if Employee wants and is able to return to his same job after only 10 weeks?

  FMLA:	He is entitled to his job.
  ADA:	There is no reason to consider the ADA because, either way, Employee gets his job back under the FMLA.
  WC:	Same as ADA.

• After the Employee is out for only 6 weeks, a light duty position for which he is qualified becomes available. Can Employee demand position? Can employer require him to accept it upon offer?

  FMLA:	The answer to both questions under the FMLA is no. Employee can demand the return to his regular job, not another one. The employer can offer the job, but Employee can elect to remain on unpaid leave with job protections for another 6 weeks.
  ADA:	Employee can demand the light duty position if he is qualified and poses no undue hardship on the employer. On the other hand, the employer cannot effectively require Employee to assume the light duty position because he could elect to remain on unpaid FMLA leave.
  WC:	Employee could refuse the position, but it may cost him his wage benefits.

  Overall, it is Employee's choice whether he wants to remain out of work on unpaid leave, and possibly without his wage benefits under workers compensation laws, or return to a light duty position.

ADA: THE DUTY OF DIALOGUE

      When an employee is limited in some way by a physical or mental impairment, his or her employer often becomes paralyzed by fear of the ADA's implications. The employer does not know if the impairment is a legal disability, and does not have sufficient information to make a reasonable determination and act accordingly. Moreover, many employers have been drilled extensively on actual and imagined restrictions imposed on inquiries about potential disabilities. They fear doing something impermissible or something that will be used to prove that they "regarded the employee as" disabled - either way inviting ADA challenges and liability.

      There are strict limitations on inquiries about disabilities, to be sure. But once an employee brings a potential disability to the employer's attention, or an impairment is having an obvious effect on his or her performance thus putting the employer on notice, the restrictions on inquiries are more relaxed. The employer can make job related inquiries consistent with business necessity. See EEOC Tech. Assist. Manual § 6.6. A legitimate purpose of such inquiries is to determine the extent of the employee's limitations. This, in turn, largely will provide the basis to determine whether the employee is covered by the ADA, and, if so, what reasonable accommodations are available and appropriate.

      The ADA requires individualized inquiries to determine whether an employee is disabled. See 42 U.S.C. § 12102(2)(A); Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999). The EEOC's implementing regulations further recognize that "it may be necessary" for an employer to "initiate an informal, interactive process" with an employee to determine appropriate reasonable accommodations. Although the EEOC's regulation expresses this interaction as optional (it "may" be necessary), some courts have held that a dialogue with the employee is mandatory. See Humphrey v. Memorial Hosp. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001). Other courts recognize that the effort is unnecessary in instances where it is readily apparent that the employee cannot perform the job's duties with or without reasonable accommodation. See Kvorjak v. State of Maine, 259 F.3d 48, 52-53 (1st Cir. 2001). Virtually all courts, however, deem this interaction necessary in all cases but those where the employee's capabilities and limitations are obvious.

      In short, the employer very often must talk with an employee specifically about his or her condition and limitations in order to make an educated assessment of the employee's rights and the employer's obligations under the ADA. In this context, the discussion is job related and a matter of business necessity, and therefore permissible. Indeed, an employer's failure to have such discussions, in most instances, erodes the employer's ability to conduct the required individual assessment. Thus, it often is a legal as well as practical requirement.

      Opening a dialogue to learn more about an employee's limitations is not the same as regarding the employee as disabled under the ADA. Rather, it is a matter of satisfying the employer's legal obligation to determine the necessity and nature of any reasonable accommodations. See Haulbrook v. Michelin North Am., Inc., 252 F.3d 696, 704-05 (4th Cir. 2001). At most, the employer regards the employee as limited in some way. This is what starts the process and necessitates the dialogue to begin with, and it is not illegal.

DUTY TO TRAIN EMPLOYEES AND INVESTIGATE COMPLAINTS

      Training employees about discrimination and harassment, and investigating related complaints, is no longer simply advisable or prudent or wise. Now, in effect, it is legally mandated. The Supreme Court's landmark decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) ushered in this mandate in the context of sex harassment. The High Court imposed two unbending requirements on employers to avoid liability for harassment: first, to take reasonable measures to prevent harassment; and second, to correct promptly any harassing behavior.

      The first requirement realistically imposes a duty on employers to train all employees. It is meaningless to implement even the most carefully conceived measures to prevent harassment if employees and supervisors alike are not effectively trained on those measures. Effective training includes being thorough, specific and sufficiently frequent to educate new employees and update everyone about meaningful changes in the law.

      The second requirement imposes a duty on employers to investigate all alleged behavior violating harassment prohibitions. Indeed, an employer cannot respond effectively to potentially harassing conduct without an adequate investigation of the conduct. An employer cannot establish that it has taken the required effective corrective action to address the situation about which it is uninformed.

      The imposition of these duties has expanded recently to harassment based on other protected criteria, such as race, national origin, and disability. See, e.g., Diaz v. Swift-Eckrich, Inc., No. 02-2535 (8th Cir. Feb. 6, 2003) (recognizing these duties in a national origin harassment case); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001) (same duties in disability cases); Swinton v. Potomac Corp., 270 F.3d 754 (9th Cir. 2001) (same duties in race cases). Although this expansion has come as a surprise to some, it should not. It has been fought hard by others, but again, in general, it should not. Title VII, the law that makes sex harassment illegal, also makes harassment based on race, national origin, color and religion illegal. The ADA and other anti-discrimination statutes are largely patterned after the provisions of Title VII. If harassment on one basis under these statutes is illegal, logically harassment because of any other basis also would be illegal. It easily follows that the duties imposed in one context also are imposed in others. That is what the courts are concluding.

SEXUAL HARASSMENT: IT'S ABOUT GENDER, NOT SEX

      Sexual harassment is not about the topic of sex. It is about the gender of the victim and the treatment of someone differently because of their gender. It helps to preserve this distinction if the illegal behavior is called gender harassment rather than sexual harassment.

      Gender harassment is illegal under Title VII. Title VII does not mandate polite or proper, or even decent, behavior in the workplace. Nor does it proscribe crass behavior about sex. It makes employment discrimination in any form based on gender, among other criteria, illegal. Harassment of some, but not others, is one way of treating people differently and therefore of discriminating. Thus, gender harassment, as it is commonly thought of, is illegal because one person or group is treated differently than others because of their gender, not because the topic of the behavior is sexually related.

      The real question in every gender harassment situation, according to the Supreme Court, is whether members of one gender are exposed to disadvantageous employment conditions to which members of the other gender are not. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Put differently the question is: Would the employee in question have suffered the harassment had he or she been of a different gender. Ocheltree v. Scollon Prod., Inc., 308 F.3d 351 (4th Cir. 2002).

      Given these concrete principles of law, even substantial, sexually explicit language and conduct directed at, and offensive to, both genders does not constitute illegal harassment. Such behavior reflects no differentiation because of gender. This is not to say that widely based sexually explicit conduct in the workplace is never illegal harassment. It certainly may be - but it must be a situation where, but for the victim's gender, the harassment would not have occurred. The focus must be on the motivation behind the behavior, not the subject matter of the behavior.

      This also means that it is just as possible to have illegal gender discrimination from conduct unrelated to the topic of sex. Again, it is a question of discriminatory motive because of gender, not the nature of the behavior itself.

CONTINUING VIOLATION OVERRIDES TIME LIMITS

      A charge of discrimination or harassment must be filed within 300 days after the unlawful act occurs (or within 180 days where a corresponding charge is not filed with a state human rights agency). This time limit, historically and practically, has acted as a statute of limitations. Conduct occurring outside these times limits could not be challenged legally, except in unusual circumstances. Careful observance of these time limits often has been very important to employers defending allegations of discrimination or harassment.

      In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that this time limit is not hard and fast. Evidence of a "continuing violation" of the law overrides this time limit in hostile environment claims. (These are claims which, by their very nature, allege a series of acts that collectively establish a violation.) Now, employees may charge and sue employers for hostile conduct outside these time limits so long as that conduct is sufficiently related to some hostile conduct within the time limits.

      Importantly, a "discreet act" (a single act that, of itself, violates the law) still must be charged within the time limits. However, under this new ruling, employees are not precluded from using discreet acts outside the time limits as compelling background evidence supporting other timely charges against the employer. In other words, even untimely allegations may be used as evidence.

      This decision is important not just from the standpoint of defending claims in court, but also in determining how to address internal claims made pursuant to an employer's complaint procedure. Previously, it may have been important for an employer to discipline only for complaints of more recent conduct occurring within the statutory time limits. Some employers were concerned that addressing allegations of older conduct would make otherwise irrelevant and unactionable claims relevant to the issue at hand. Now that concern bears little importance. The employer will want to take appropriate disciplinary action in response to all substantiated complaints. The time between the alleged conduct and the complaint still may be a factor in determining the appropriate action to take.

THE KEY TO EMPLOYEE MONITORING

      Employers want to monitor employees in the workplace for a variety of reasons. Productivity concerns, the security of company property, information and employees, the misuse of company equipment, and the liability that may follow from that misuse typically are the primary reasons.

      Monitoring can be done in a variety of ways from common file review to video and audio recording to electronic surveillance. It can include monitoring computer and internet use, e-mail and voice mail, and telephone conversations. Monitoring may also involve active and passive observation of activities in locations throughout the workplace, including break rooms and locker rooms, and even the physical search of desks and lockers.

Restrictions on employer monitoring are imposed by a variety of statutes. Most notably are the following:

• Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510 et seq., prohibits the interception, use or disclosure of any oral, wire or electronic communication. This would include communications made via the internet, computer, voice mail, e-mail and telephone.
• The Stored Wire and Electronic Communications and Transactional Records Access Act, 18 U.S.C. §§ 2701 et seq., prohibits intentionally accessing or disclosing any stored electronic communications and records. This law protects e-mails, voice mails, and other electronically stored communications.
• Virginia's Interception of Wire, Electronic or Oral Communications Act, Va. Code §§ 19.2-61 et seq., is virtually the same as the federal ECPA.
• Virginia's Telephone Monitoring Act, Va. Code § 18.2-167.1, prohibits any employer from monitoring any telephone conversation between an employee and a customer.
• Virginia's Computer Invasion of Privacy Act, Va. Code § 18.2-152.5, makes it illegal to use a computer to examine any employment, salary, credit or other financial or personal information about any other person.

      Public employers also are subject to constitutional privacy protections under the Fourth Amendment to the United States Constitution and Article 1, Section 10, of the Virginia Constitution.

      There are exemptions and conditions for permissible monitoring under these statutes and constitutional provisions. There is one key, however, that unlocks all of these restrictions - that is to dispel any reasonable expectation of privacy. This is done by advising employees in advance of monitoring efforts. Tell employees that the employer will monitor (not that it may monitor or it reserves the right to monitor or something equally vague). Also, tell them how the monitoring will be done. If the employee acts knowing in advance that his or her activities are subject to monitoring, the employee has given constructive consent to the monitoring and has given up any claim to privacy in the activity. Absent a reasonable expectation of privacy, there is no basis to claim illegal monitoring.

      Public employers are subject to the additional requirement that the employee's expectation of privacy be balanced against the employer's need to supervise and control the workplace through monitoring. However, the public employer that dispels the expectation of privacy at the outset can tip that balance in its favor much more easily.

FREEDOM OF SPEECH CONCERNS

      When an employer wants to discipline or discharge an employee for lawful activities outside of work that may reflect poorly on the employer, frequently one side or the other raises concerns about unlawfully curtailing the employee's freedom of speech rights. Often this issue arises in connection with the employee's involvement in some morally debatable cause or activity.

      Freedom of speech is guaranteed under the First Amendment to the United States Constitution and Article 1, Section 12, of the Virginia Constitution. The purpose of these constitutional provisions is to prohibit unwarranted governmental suppression of speech. Both the federal and state constitutions fix the limits of government activity only; they do not restrict activities between private citizens. See Town of Madison v. Ford, 255 Va. 429 (1998); Shifflet v. Lewis, 47 Va. Cir. 95 (1998). Private employers are private citizens under the constitutions. Therefore, constitutional rights to free speech, and for that matter free association and assembly, do not inhibit disciplinary and discharge actions by private employers.

      Note that certain types of speech and other activities still may be protected under particular statutes. For example, some forms of religious speech or activity may be protected under Title VII.

PROTECTED CONCERTED ACTIVITY WITHOUT UNIONS

      Section 7 of the National Labor Relations Act provides non-supervisory employees the statutory right to bargain collectively and "engage in other concerted activities for the purpose of collective bargaining and other mutual aid or protection." See 29 U.S.C. § 157. Many HR professionals and lawyers naturally associate these rights with the presence of a union - either a union-represented workplace or an organizing campaign. However, Section 7 gives employees the right to engage in concerted activities even where there is no union activity and no collective bargaining is contemplated. See Southern Oxygen Co. v. NLRB, 213 F.2d 738 (4th Cir. 1954).

      Concerted activity is any activity by employees united in pursuit of a common goal. To be protected, the activity must be for mutual aid or protection - that is, seeking to improve terms or conditions of employment, such as wages, benefits, working hours and environment, policies, and assignments. Concerted activity can be taken by only one employee so long as it is for the benefit of a group.

Protected concerted activity includes conduct that initially may appear insubordinate, trouble-making, or just as chronic complaining. Examples include:

• Employee being an outspoken critic against uncompensated sales meetings, NLRB v. Henry Colder Co., 907 F.2d 765 (7th Cir. 1990).
• Two employees who composed a letter openly criticizing management for a change in its compensation method, Westmont Plaza, 298 NLRB 401 (1990).
• Television interview given by two employees publicly criticizing their employer about working conditions at a hospital, Community Hosp. of Roanoke Valley v. NLRB, 538 F.2d 607 (4th Cir. 1976).
• Two employees telling a third that they believed the company's refusal to hire the daughter of the third was because of race, Dearborn Big Boy No. 3, Inc., 328 NLRB 705 (1999).
• Employee circulating a petition critical of his employer for not having a policy of driving an employee home when he receives news of a death in the family, Owens-Corning Fiberglass Corp. v. NLRB, 407 F.2d 1357 (4th Cir. 1969).

      In each of these cases the employees were discharged for behavior contrary to the employer's interest. In each case, the employees prevailed in unfair labor practice charges, were reinstated to the jobs they lost, and were awarded lost back pay with interest. Since the NLRB prosecutes these cases, the employees incurred no legal costs. The same cannot be said for the employers.

      On the other hand, simple criticism of management about matters unrelated to terms and conditions of work, or basic disrespect with no aim towards mutual benefit, is not protected activity. The key in these cases is to examine the purpose of the activity, not the tone or content.

About the author: Thamer E. "Chip" Temple III is a Principal of the Firm practicing primarily in the area of labor and employment law, representing management and executives in all areas of employer rights.

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