Legal Issues with Employee Discipline

1. Legal Issues with Employee Discipline Michael T. Oakley, J.D Assistant General Counsel Oklahoma Department of Corrections

2. Due Process Appeal Rights • New Mexico has a statute which requires just cause for discharge of tenured employees • New Mexico also has a law which allows for discharge of public employees when they are unable to perform their job. • Employers of disabled employees are required to make reasonable efforts to reassign • No appeal is provided for disabled employees

3. Candy worked for the N.M. State Personnel Office (SPO) for 4 years as a receptionist • She was reassigned to a job which required a lot of computer work, which gave her migraine headaches • Candy’s condition worsened and she was eventually unable to do her job duties

4. Candy’s supervisors, Perez and Brown, determined that she could not do computer work any more and did not reassign her • Candy was told she would be fired if she couldn’t perform her job duties. • No appeal was afforded because of the state code. • Candy sued her supervisors individually for violation of her due process rights

5. Candy admits she is permanently disabled, but she says her supervisors failed to accommodate or reassign her. • Candy applied for several jobs, including her old receptionist job • Candy’s supervisors say she has not been injured because she was permanently disabled and unable to do her job and a hearing would not help her anyway.

6. Questions? • Did Candy’s supervisors violate her due process rights? • If they did, what about the N.M. Code, which allows for discharge without an appeal? • Do the supervisors have governmental immunity?

7. What process is due? • 14th Amendment protects against loss of life, liberty or property without due process. • In Cleveland Bd. of Educ. V. Loudermill (1985) the Supreme Court held that when someone can only be fired for cause, they have an expectation of continued employment and a property interest sufficient to invoke the 14th Amendment

8. Is there a property right? • The Loudermill case requires notice and a hearing, yet the N.M. Code did not require a hearing for clearly disabled people. • The Code required an inquiry to see if there was a disability, if it was permanent, and accommodations • Can there be an expectation of continued employment when the employee is so permanently disabled they cannot perform the job? • Is there a property right if there is no expectation an employee can do the job?

9. Rights and Immunity • The court held that Candy’s supervisors violated her due process rights when they failed to give her a hearing • What about the state law allowing them to deny a hearing? • Government employees generally have immunity unless they are violating a “clearly established standard.”

10. Immunity • Clearly established means sufficiently clear a reasonable official would understand he is violating the Constitution • Both a federal law and Loudermill provide that a hearing is necessary • The court ruled that the presence of a state law is NOT relevant to whether it is clearly established • The officials here were experts in personnel law and cannot stand behind a statute.

11. What about FMLA? • The Family Medical Leave Act allows up to 12 weeks of paid or unpaid leave each year • When an employee has a serious health condition making the employee unable to perform the functions of the position • When a family member has a serious health condition (spouse, child, parent) • Birth, adoption or foster care

12. FMLA Facts • Leave can be paid or unpaid • Leave must be designated by the employer • Leave must be designated at the time taken, or within a reasonable time thereafter • Employee must have been working for 1250 hours in the past year • May require verification

13. Timing is Everything • Gayle started working for JAC as an assembler in 1984 • She then worked as a corporate administrator until 2001 when the job was eliminated • Gayle accepted a transfer to accounts payable clerk

14. Gayle started to suffer work related stress after her transfer, but refused another transfer. • Sept. 16, 2002, Gayle saw Dr. Speegle, and was diagnosed with HPB and anxiety. She was told to take off until the 29th • Gayle, thinking nobody else was capable of doing the job, ignored the Dr.

15. Sept. 19, Gayle again saw the Dr. and this time the diagnosis was “adjustment reaction to her new job and anxiety due to stress.” Leave recommended until 10-06 Sept. 20, Gayle called her supervisor Cindy, and told her she would be off until October 6. • Cindy told her to come in the following week to bring the Dr. note

16. Sept. 24, Gayle was met by security, and escorted to the benefits manager, Jodee. • What transpired next is disputed • JAC says Gayle was handed a Request for Leave form and a Medical Certification form. Included was a note that the forms must be returned in 15 days or face discharge.

17. Gayle says she got the forms, but didn’t know what was going on, the procedure differed from before and it was stressful because her young daughter was with her • 10-3, Dr. saw Gayle again, concluding Gayle still had anxiety, dizziness, and insomnia, extending leave until 10-14, at which time, Gayle would see a psychiatrist

18. Gayle immediately provided Dr.’s updated note to JAC along with the Request form • 10-3: JAC approved leave, although Gayle had not turned in the medical certification form • 10-7, JAC mailed her a correct version of the form (the one provided o 9-24-02 didn’t meet the DOL requirements) with instructions to return it by 10-11-02

19. 10-11: Gayle received the letter and contacted personnel saying she needed an extension because she just got the letter • Gayle says they extended until 10-21 • JAC says they extended until 10-18 • Gayle called Dr. several times a day and finally hand delivered the forms on 10-21

20. JAC sent a certified letter discharging Gayle on 10-21 for failure to meet the10-18 deadline • 10-29: Gayle evaluated by psychiatrist as “major depression”—Off until Jan. 16, ’03 • Another psychiatrist treated her until March of ’04---15 months after her 12 weeks

21. Gayle sued, saying JAC • Failed to provide her written notice of FMLA rights • Failed to give sufficient time to complete the forms • Interfered with her statutory rights • Discharged her employment wrongfully • Made her condition worse

22. Questions • May an employer discharge an employee when the employee has FMLA leave remaining? • Does it matter that the employee maintains they would have come back if they had known? • Does it matter whether the duration of the medical condition is learned after the discharge?

23. Sixth Circuit • There is no violation of FMLA when the employee is incapable of returning to work after 12 weeks • It would make a difference if Gayle had claimed she would return; however, her doctors were all saying she couldn’t • Knowledge of duration of condition may be used to justify dismissal if there has been no prior interference with the exercise of FMLA rights

24. What about exacerbation • Finally, Gayle says her employer exacerbated her condition, thereby preventing her return to work • The courts have thus far not adopted the exacerbation theory • FMLA does not address the cause of the condition. It just specifies the time one may be absent because of it.

25. Related FMLA Questions • Are you designating FMLA in a timely manner? • Are you giving notice of designation to employees? • How does FMLA interact with ADA and Workers Compensation?

26. Workers Compensation • Husband and wife both work for you • Wife, a bookkeeper, has a workers compensation injury • You find out that she is working for H&R Block, part time • You confront her, and she reports that her doctor will not release her to work for you, but it’s OK to work part time for H&R Block

27. What can you do? • Can you tell her she has to choose between you and H&R Block? • Can you give an order to return to work? • Can you discipline her? • Do you have to worry about discipline on her husband, if necessary?

28. Retaliatory DischargeWorker’s Compensation • Most states have a statue which prohibits discipline taken because and employee files a workers compensation claim • There is a general public policy which protects those who make such claims • The Kansas Courts have extended the wrongful discharge action to spouses where both are employees and the non filing party is disciplined.

29. Rules for Discharging Workers Compensation Claimants • Employers may not require employees to abandon their workers compensation claim in order to retain employment • There is no retaliation if the employer merely wants to fill the position and the employee cannot do the job • Most cases lie in the middle and require some careful analysis

30. Americans with Disabilities Act • Prohibits discrimination because of a disability • Qualified Individual = person with a disability who can still perform essential functions • Disability = physical or mental impairment which substantially limits one or more major life activities, having a record of such impairment or being regarded as having impairment

31. Major life activities include walking, seeing, hearing, speaking, breathing and learning • Might also include Work • Essential Functions • Identify job duties • Identify individual’s skills and experience • Essential functions can include regular attendance or not posing a threat to others

32. Reasonable Accommodation • An action which allows the qualified individual to perform the essential job functions, but does not pose an undue hardship • Process should be interactive • Reassignment • Job restructuring • Equipment or devices • Modified work schedule • Leave usage

33. Hall has worked as a deputy sheriff since 1979 • In May of 1994, Hall began to suffer a prostate condition which put him on medical leave until August 1994 • When he went back to work, he was assigned to investigations division as light duty instead of his regular patrol job • Hall’s condition caused him to need to go to the bathroom “frequently and precipitously”

34. While assigned to investigations, Hall applied for jobs within the agency in February and April of 1995, but he did not get the promotions • He applied for a job as courthouse services guarding prisoners during court proceedings, but the sheriff rejected his application, saying Hall would need to be too close to a bathroom

35. In late April, 1995, supervisors told Hall he would be assigned to a position in the detention facility in August • Hall objected to the assignment and on May 15, 1995, sent a memo to the Sheriff stating his condition prevented him from performing the patrol duties and couldn’t do the detention job because of claustrophobia

36. On June 12, 1995, Hall sent the Sheriff a second letter, asking to be assigned to one of two investigation positions opened • The positions were paid the same as a patrol officer • After the second letter, personnel talked to Hall about two different jobs which were demotions. • Hall also got notice of another opening, but the application deadline had expired

37. Hall continued to work in the investigations unit until August 15, 1995, when he failed to report to the detention position • The sheriff then treated Hall’s failure to report as a resignation • Hall has filed an ADA lawsuit claiming • Sheriff should have assigned him to the vacant investigator positions • Sheriff fired him because of his disability

38. Questions • Was Hall a qualified individual with a disability? • Working is a major life activity • Did Hall’s urological condition substantially limit his ability to work? • Nature and severity of impairment • Duration or expected duration of impairment • The long range impact of the impairment

39. The court affirmed a jury finding that Hall was a qualified individual because his condition required him to be close to a bathroom, which interfered with a whole class of jobs, not just patrol officer

40. Accommodation • Hall believes he should have one of the investigator jobs • There is no requirement for a promotion or to create a job • The jobs were a lateral transfer and they were open • What if Hall was not the best qualified to be an investigator?

41. Duty to Reassign • There is a duty to reassign • Sometimes the disabled employee is entitled to the reassignment, even if he is not the most qualified • The reassignment would mean nothing if an employer was only required to consider the application

42. Lateral v. Demotion • Was Hall entitled to the lateral over the other two jobs, which paid less? • In the 10th Circuit, employers must first consider lateral transfers • Only if there are no vacant transfer positions can the employer demote the employee • It is not reasonable to demote an employee when a lateral job is open and available • The employee must have the job qualifications

43. Claustrophobia • At the trial, Hall’s claim of claustrophobia was not proven to be a disability • Since it was not a disability, can it still be considered? • The 10th Circuit said the Claustrophobia could be considered to determine whether the employer was reasonable

44. Lessons • Bad facts make bad laws • The claimant must show a condition which interferes with a major life function • Employers have a responsibility to look for lateral transfers • No requirement to create new positions • The claimant need not be the “best” qualified person to have priority

45. Retaliation for FilingDiscrimination Claims • Sheila White was hired by Burlington in June,1997 as a “track laborer” • The job entailed removing and replacing track, cutting brush, clearing litter, etc. • Sheila was assigned the duty of forklift operator because of prior experience • In September 1997, Sheila complained to officials that her immediate supervisor, Bill, was sexually harassing her

46. After an internal investigation, Bill was suspended or 10 days for sexual harassment • On September 26, Sheila was told about Bill’s discipline and was told she was being removed from forklift duty because a more senior man should have the less arduous and cleaner job of forklift operator

47. October 10, Sheila filed an EEOC complaint, saying the reassignment of duties was retaliation for her filing a sexual harassment complaint. • In early December, she again complained to EEOC that she was being spied upon by Burlington • A few days later, Sheila and her immediate supervisor had an argument

48. Sheila’s supervisor told the boss that she had been insubordinate and Sheila was placed on suspension without pay pending investigation • Sheila filed a grievance and 37 days later, she prevailed on the grievance and was awarded back pay and benefits • Sheila filed yet another retaliation charge with EEOC, saying the suspension caused her emotional problems and “the worst Christmas I ever had.”

49. Title VII • It is an unlawful employment practice to • Fail or refuse to hire or to discharge any individual or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment, because of race, color, religion, sex, or national origin; or • To limit, segregate, classify employees or applicants in any way which would deprive or tend to deprive the individual of employment opportunities or otherwise adversely affect the status as an employee

50. Anti-retaliation Under Title VII • It is an unlawful employment practice for an employer to discriminate against any employee or applicant because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted or participated in any manner in an investigation or proceeding under this subchapter