MCCF

Frequently Asked Questions About Employment Law:

 

Q: How must an employer respond to a request for accommodation?
A:

• An employer who has received a request for accommodation of a disability from an employee or applicant, or who has been informed by an employee or applicant that he or she is disabled and may need assistance, has an obligation under the Americans with Disabilities Act to engage in an "interactive process" with the employee or applicant.
  
• When accommodation is sought by an employee, the employer may ask an employee to show that he or she is, in fact, disabled and in need of some accommodation, and then must work with the employee and, if appropriate, his or her health provider, to determine what accommodation would be appropriate. The employee likewise has an obligation to cooperate with the employer in providing information, and must notify the employer if an offered accommodation is not sufficient. An employer is not expected to be a mind reader nor must it take entire responsibility for finding an appropriate accommodation. Furthermore, an employee may not request an accommodation and then refuse to provide any evidence that he or she is disabled or is, in fact, in need of an accommodation. Finally, an employee may not reject all offered accommodations by the employer if those accommodations would be effective.
  
• Where accommodation is sought by an applicant for employment, the employer has less right to seek medical information confirming that the applicant is actually disabled. On the other hand, the employer also has fewer obligations to accommodate. An employer generally need not invest in work site changes or adaptive equipment for an applicant, but must allow an applicant to bring appropriate adaptive equipment to the interview or make an interview location accessible, which may often be accomplished simply by temporarily moving to a different office.
  
• Finally, an employer need not provide either an employee or an applicant with the precise accommodation he or she requests, or the best possible accommodation available (which is often also the most expensive accommodation). Instead, the employer is free to provide any accommodation that effectively allows the employee to perform his or her job duties or allows the applicant to participate fairly in the interview process. Likewise, the employer is not required to provide accommodations that are not work-related. For example, a disabled employee may, in general, be in need of a wheelchair, but the employer is not required to provide it for her. The employer may, however, be required to provide an employee with a cot, accessible bathroom, or modified work schedule if such accommodations would enable the employee to perform his or her job.

Q:What must an employer do if it suspects that an employee performance problem is caused by a medical condition?
A:

• An employer, who is faced with substandard performance by an employee, need not automatically determine whether the performance problem is caused by a disability covered by the Americans with Disabilities Act. Often, however, the employer is already aware that the employee has a medical problem and suspects that the performance problem is related. In that situation, the employer may have an obligation, before firing or disciplining the employee, to determine whether the performance problem is, in fact, caused by a disability, and whether the problem would be alleviated with some reasonable accommodation.
  
• For example, an employer may have been informed by the employee that he or she has been diagnosed with clinical manic depression, and may then see a decline in the employee's performance. The employer need not assume that the performance problem is caused by the depression, but may ask the employee whether he or she has any explanation for the problem. If the employee states that it is caused by his or her depression, the employer must then engage in an interactive process with the employee to determine whether some accommodation, such as a leave of absence, might assist the employee. If the employee does not link the performance problem to his or her disability, however, the employer is not required to assume that they are related. Furthermore, if no reasonable accommodation exists or is effective in improving the employee's performance, the employer is not required to lower the employee's performance expectations simply to avoid firing him or her.
  
• Similarly, an employer may know that the employee is an alcoholic, and may learn that he or she has been drinking on the job. The employer may ask the employee if this violation of company rules is caused by his or her alcoholism, and if it is, may be required to allow the employee to seek rehabilitation before disciplining or firing the employee. Should the employee refuse or fail rehabilitation or treatment, or continue to drink on the job, the employer may then fire the employee.

Q: Must an employer give employment references?
A:

• An "employment reference" is the popular name for the recommendation (or warning) that an employer may give to a potential future employer about a former employee. In the past, employers freely gave such references, whether good or bad, to anyone who requested one. Many employers now refuse to release any information about a former employee, however, due to fear of litigation.
  
• For example, an employer who gives a negative reference that is inaccurate may be sued for defamation by the present or former employee. Defamation occurs when a party "publishes" (that is, discloses to others) a statement about another which is false and which tends to harm the other person's reputation or standing in the community. An employer's statement, even if false, is protected by a "qualified privilege," however, if the employer made a reasonable investigation or had other reason to believe the statement was true, and made the statement to those who had reason to know. The privilege is designed to help employers protect the community from dishonest or dangerous former employees. Thus, an employer may disclose to another potential employer that its former employee was fired for fraud, if the employer conducted a reasonable investigation of the allegation. In contrast, if the employer merely fires the employee because of a rumor that the employee stole from the employer, and then tells others that the employee was fired for theft, the employee may be able to recover for defamation.
  
• An employer must also be on guard not to invade the employee's privacy, for example, by disclosing private family or medical information about the employee to a potential employer. A private citizen may state a claim for invasion of privacy where another has disclosed information that is not of general interest to the public, and where such disclosure would be offensive to the reasonable person.
  
• Finally, an employer that gives a false positive reference, if it knows that, in fact, that reference is inaccurate, may spark a lawsuit by the future employer if the former employee then engages in some misconduct. For example, an employer who fires an employee for violence in the workplace, but tells a potential employer that the employee was a wonderful performer, may find itself sued if the former employee then harms an employee or customer of the new employer.

Q: What must an employer do if it receives a complaint of harassment?
A:

• An employer who receives a complaint of harassment based on race, gender, national origin, age, religion, or disability has an obligation, under federal law and the law of most states, to investigate the complaint and then take "prompt, appropriate remedial action." If the employer determines that the employee's complaint is unjustified, then taking no action at all may be appropriate. On the other hand, if the employer determines that some or all of an employee's complaint is grounded in fact, the employer must take an action, which is reasonably calculated to end the harassment. Such action could include moving or demoting the alleged harasser, disciplining the harasser and formally noting the discipline in his or her personnel file, requiring him or her to take training, or firing the harasser.
  
• In contrast, an employer may not respond to a complaint of harassment by simply firing the accused harasser, without regard to whether the complaint is justified. While this may prevent any future harassment, if the complaint was untrue, the accused harasser may then sue the employer, claiming "defamation by self-publication." Such a claim is based on the theory that the fired employee, in telling prospective future employers why he or she was fired, is forced to say that he or she was fired for sexual harassment, and thus forced to publish a false and harmful statement about him- or herself. If, on the other hand, the employer conducts a reasonable investigation of the complaint, it will then be protected by the "qualified privilege" against defamation, even if the complaint turns out to have been unjustified.
  
• Finally, an employer may not retaliate against an employee who has brought a complaint of harassment, and must prevent the harasser from retaliating against the employee. Demoting the employee, moving him or her to a different, less desirable position, or subjecting the employee's performance to increased scrutiny may all be seen as retaliation.

Q:What should an anti-harassment policy contain?
A:

• An employer who does not enact an anti-harassment policy may automatically be held liable for harassment of an employee by a supervisor. In addition, although an employer may not automatically be held liable for harassment of an employee by a coworker, an employee who claims illegal harassment will have a difficult time showing that the employee "knew or should have known" of the harassment if the employer provided the employee with a reasonable avenue of complaint which the employee failed to use.
  
• An anti-harassment policy should typically be in writing, posted in the workplace, and distributed to all employees. It should explain that harassment is illegal and not tolerated in the workplace and specifically explain what constitutes illegal harassment. For example, although sexual harassment is the best-known form of illegal harassment, such a policy should explain that harassment on the basis of race, national origin, religion, age, or disability is also illegal. The policy should specifically mention harassment, and not simply tell employees that any complaint about the workplace in general may be directed to human resources or a supervisor.
  
• Most critically, such a policy should contain a reasonable avenue of complaint process for employees. A policy that requires an employee to complain to his or her supervisor will not be considered "reasonable" if the supervisor is the person harassing the employee. Similarly, a policy which requires the employee to submit a written, witnessed complaint to one distantly located officer of the company may be considered unduly burdensome or intimidating to employees, and more likely to discourage than encourage complaints.

Q: Must an employer perform formal performance reviews?
A:

• There is no legal requirement that every employer perform formal performance reviews of employees, just as there is no general requirement that an employer have "just cause" to fire an employee. An employer may, however, be required by the terms of an employment contract, employee handbook, or collectively bargained (union) agreement to review an employee annually or more often.
  
• Even where an employer is not required to conduct regular performance reviews, such reviews can be valuable evidence that will help to defend an employer against a claim of discrimination, retaliation, or wrongful termination. For example, an employer may be able to use an annual performance review to show that an employee was fired not because of his or her race, age, or gender, but because of his or her documented poor performance. Similarly, an employer may show that another employee was promoted because his or her performance reviews were consistently better than those of the complaining employee and not because the employee had complained about hazards in the workplace.

Q: May an employer convert some or all of its employees to independent contractors and thereby avoid paying employment-related taxes and benefits?
A:

• An independent contractor is a worker who is self-employed and who performs work for an employer on a "project" or contractual basis. Independent contractors are also known as "contract" or "contingent" workers. Whereas an employer must often pay for state or federally mandated benefits for its employees, such as Social Security, workers' compensation, and unemployment compensation, independent contractors are not entitled to such benefits. In addition, an employer is required to withhold payroll taxes from an employee's pay, whereas an independent contractor must pay such taxes himself or herself.
  
• Whether a worker is legally an independent contractor will not be governed by the title that the employer places on the relationship, even if the worker signs a contract agreeing to the title. Instead, it will be governed by the duties actually performed by the worker and the degree of supervision that the employer imposes upon the worker. For example, a contractor who holds a high-level position with the employer, works at the employer's workplace, is paid by the hour, uses the employer's equipment, or takes specific and detailed directions regarding his or her job duties from an employer, is likely to be characterized as an employee by government entities, even if the worker has agreed with the employer to be characterized as an independent contractor. In contrast, a worker who is paid on a project (and not hourly) basis, works for more than one company at a time, works out of his or her own office or home, uses his or her own equipment, and is given a task to accomplish and left to his or her own discretion as to how to go about doing so, is more likely to be classified as an independent contractor.
  
• An employer whose "contractors" are retroactively determined to be employees may be required to pay back employment taxes and penalties. In addition, if the employer sponsors certain employee benefit plans for its employees, such as health insurance or a pension program, the employer may be required to retroactively provide the contractors with those benefits as well, depending on the terms of the individual benefit plans. Therefore, before converting "employees" to "independent contractors," an employer should consult an attorney.

Q: Must a company provide a smoke-free workplace to its employees?
A: Although second-hand tobacco smoke is widely believed to be a cause of illness, federal law does not require that every employer provide a smoke-free workplace to its employees. Only in certain situations must an employer eliminate smoking from its facilities. The Occupational Safety and Health Act may require a smoke-free workplace where, for example, industrial contaminants may mix with smoke and create air quality that is so poor that it violates workplace safety standards. In addition, a growing number of states and local governments have mandated that all or part of a workplace be kept smoke-free, for the protection of clients and customers as well as employees. Finally, an employee who is rendered "disabled" by tobacco smoke in the workplace, perhaps because of asthma, or who has some other disability which makes it dangerous for the employee to be exposed to tobacco smoke, may be able to require his or her employer to provide the employee with a smoke-free workplace as a "reasonable accommodation" of that disability.

Q: May an employer award bonus pay or time off to an "exempt" employee who works extra time?
A:

• An "exempt" employee, or an employee who is not entitled to payment of overtime compensation, must be paid a "salary" which does not vary with the number of hours the employee works. Under the Fair Labor Standards Act, a mark of exempt status is that the exempt employee may decide for him- or herself how many hours his or her job requires, whether more or less than forty per week. An employer can therefore destroy an employee's exempt status, and become liable for past overtime pay to the employee, if the employer makes a practice of altering an employee's pay based on how many hours he or she works in a week or requiring the employee to work a set number of hours in a week.
  
• The Department of Labor and the courts that construe the Fair Labor Standards Act currently disagree on the appropriate interpretation of these rules. While it is clear that an employer violates FLSA if it takes improper deductions from an employee's pay because the employee has missed work, it is unclear whether an employer may reward an employee specifically for working additional hours, either through extra pay or through a "time off" plan. Courts have held in the past, however, that an employer may convert his or her employee into an "hourly" employee who is entitled to overtime payments by paying the employee extra compensation if that employee works more than forty hours in one week, particularly if the employer awards that extra pay on an hourly basis. Similarly, an employer who requires its exempt employees to work a certain number of hours each week, and permits those employees to miss work only if they have worked "extra" hours in previous weeks, may destroy the employees' exempt status. On the other hand, it is clear under the law that an employer may pay an exempt employee a bonus based on an increase in sales or general productivity. An employer may also expect an exempt employee to work fewer hours when the workplace is less busy, just as the employer may expect the employee to put in extra hours when the pace of work picks up, as long as the employer does not alter the employee's pay if he or she fails to work a certain number of hours per week.

Q: When may an employer refuse to allow an employee to take FMLA leave or refuse to reinstate an employee after such leave?
A:

• An employer who meets the minimum size requirements of the Family and Medical Leave Act must allow an employee who has been employed for at least one year and who has worked slightly more than one-half time in the past year, to take up to twelve weeks of unpaid leave for medical reasons, or to care for a new baby, child, or family member with a serious medical condition. There are certain situations, however, in which an employer may delay or deny such leave. For example, an employee must give thirty days' notice of his or her need for leave if possible. An employee who plans necessary but not emergency surgery must give the employer such advance notice. If the employee fails to do so, the employer may require the employee to delay his or her leave until the notice period has elapsed. Furthermore, an employer may refuse or delay a leave if the employee fails to provide timely medical certification of the need for leave, whether the leave is for the employee's medical condition or to care for another.
  
• An employer may decline to reinstate an employee if he or she fails to return at the end of his or her twelve weeks of leave or if his or her position has been eliminated during the leave, if the position would have been eliminated regardless of whether the employee took a leave. Likewise, if the employer notifies the employee at the time he or she begins a medically related leave that the employee will be required to provide certification of fitness for duty before he or she may return, the employer may refuse to reinstate the employee until he or she provides such certification. Finally, if the employee notifies the employer at some point during the leave that he or she does not intend to return, the employer's obligation to reinstate the employee ends. This is the case even if the employee later changes his or her mind. The employer's obligation to continue paying for the employee's group medical coverage also ceases.