Troutman Pepper Locke's Labor + Employment Group

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Over a year ago, our colleagues at the Information Intersection blog warned that employers should think twice before using websites such as Spokeo.com, which are aggregators of personal information collected from online sources, including social media.  They warned that:

…the information available through some of these sites might be incomplete, inaccurate or dated…The reality is that most online information brokers, in their current versions, are not designed to be used for employment screening purposes.  They typically do not meet or even purport to meet the strict rules that apply to pre-employment screening databases.

A New York federal court recently dismissed a lawsuit filed by Cuttino Mobley  against the New York Knicks.  Mobley, a ten-year veteran of the NBA, claimed that the Knicks discriminated against him because he suffers from hypertrophic cardiomyopathy, a potentially-fatal condition which causes thickening of the wall of the heart.

Mobley argued that the Knicks unlawfully released him after learning about his heart condition.  According to Mobley, he could safely perform the essential functions of his job as a basketball player, and to him this was proven because he had done so for the past ten years (while he was apparently already afflicted with the heart condition ).  However, the Knicks sent Mobley to see two cardiologists, and both doctors determined that it was not safe for Mobley to play basketball with his heart condition.  To the Knicks, this meant he was not qualified to perform the essential functions of his job.

Name:  Patrick O’Donnell
Title:  VP HR & Risk, CPO
Company:  Kauffman Tire, Inc.
1. How many years have you been working in HR?  20 years.  Wow, I never really calculated that before!
2. Favorite thing about working in HR?  Impact.  While there are many other favorites like variety and fast pace, impact is probably my runaway answer.  The many facets of business and personal impact from efforts in this role are vast and gratifying.
3. Best piece of advice you ever received about a career in HR?  Get out – choose a different career!  More than one person has told me that.  The flip side of number two is that in “real world” HR/Business roles you have many challenges from all directions and much of your effort can be misunderstood and unappreciated.  It can be a difficult tightrope walk that is not for everybody.

Over the last two years, the amendments to the Americans with Disabilities Act (ADA) have been a prominent and well-discussed topic of employment law. The changes are substantial and significant, as you surely have recognized. But, the changes have also likely left many of you (and supervisors and managers you work with) concerned and confused about how to interact with disabled employees without offending or upsetting them.

Can you terminate an employee for participating in an internal investigation at your company that is not connected with a formal EEOC proceeding?

Recently, in Townsend v. Benjamin Enterprises, Inc., the Second Circuit joined five other federal appellate courts in answering this question with a “yes.”  The Court held that participation in an internal employer investigation not connected with a formal EEOC proceeding is not protected activity under the participation clause contained in Title VII.  So, an employee participating in an internal investigation is not protected from being terminated in retaliation for such participation.  However, even if such a termination is not unlawful, it is still not a wise or productive decision for any company.

Using a cell phone while driving is dangerous – we all know that.  Texting while driving is (or will soon be) illegal in 39 states and the District of Columbia.  But are your company’s employees using their cell phones to call or text while driving?  Are they doing it in a company car, with a company phone?  Even if your employees are only handling company business on a personal phone in a personal vehicle, you may still be at risk for a distracted driving lawsuit should they be involved in an accident. 

Last week, the National Labor Relations Board  (“NLRB”) issued its latest guidance on employer social media policies.  Over the past few years, the NLRB has taken the position that “overbroad” social media policies unreasonably and unlawfully prohibit employees from engaging in protected activities under Section 7 of the National Labor Relations Act  (“NLRA”).  Importantly, Section 7 applies to both unionized and non-unionized workplaces.  So, if you are a non-unionized employer, read on — this applies to you, too!

You may be familiar with the Computer Fraud and Abuse Act (CFAA) – a federal law that was intended to target hackers seeking access to protected computers (i.e., governmental or financial services industry computers) in order to access confidential information or to distribute worms or viruses.  Since its enactment, however, the CFAA has been repeatedly amended to add greater protection for privately-maintained computers, a private right of action for civil remedies, and to adapt the statute to the Internet age.  As it reads today, the CFAA provides that “[a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.”

You may have seen that the EEOC recently released new guidance on how employers should use criminal background checks.  Specifically, the EEOC expressed its concerns that use of background checks may, in some instances, violate Title VII of the Civil Rights Act of 1964 (“Title VII”).  Let’s examine the EEOC’s position and explain why this new guidance is a particularly aggressive move.

The EEOC’s guidance shows its concern over whether employer use of criminal background checks creates a “disparate impact” on race and national origin.  As you may know, employers can be liable for discrimination under a disparate impact theory when an otherwise neutral employment practice or policy has a disproportionately adverse effect on members of a protected class.  The EEOC’s position is that criminal background checks might unlawfully “screen out” members of a particular race or national origin.  However, there are at least three reasons why the EEOC’s position is particularly aggressive – and is troubling for employers.

If you think getting a federal agency like OSHA to approve your medical questionnaire form will protect you from violating the Americans with Disabilities Act, think again.  Whirlpool Corporation learned this lesson the hard way – but their hard lesson can be useful to you.

In a recent case in Ohio (Miller v. Whirlpool Corp.), Whirlpool had created a medical questionnaire in response to an accident that resulted in an OSHA safety violation.  It narrowly believed that satisfying OSHA’s requirements and protecting the safety and health of its employees were its only concerns.  However, the questionnaire included invasive medical questions such asking employees to identify specific mental or physical illnesses or accidents, the date of onset, and all medications the employees were taking.  The Ohio court had little trouble concluding that the questionnaire was an improper disability-related inquiry because it intends to reveal or necessitates revealing a disability.