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.

Until recently, Georgia was one of the most difficult states in which to enforce a non-compete or other restrictive covenant agreement against employees who left their jobs, set up their own business or went to work for a competitor.  In 2009, the Georgia Legislature decide to change this by enacting legislation intended to clarify the law on non-compete agreements as well as other restrictive covenants (such as non-solicitation and non-disclosure provisions).

While the goal was clear, the legislation was not.  The law that was enacted (and the amendment to the Georgia Constitution that was needed to permit the new legislation) left confusion about when the new law would take effect. 

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.

I have recently written about cases where discrimination and retaliation led to large verdicts and huge liability for employers.  These cases remind us that hostility at work, in the form of discrimination and harassment, is wrong and expensive.  An additional example from just this week shows what happens when harassment occurs and is allowed to continue, and ends up out of control.

This past Tuesday, a federal jury in New York awarded $25 million to a steel plant worker on his mind-boggling claims of racial discrimination, harassment and retaliation, as well as some tort claims for emotional distress.  That kind of verdict raises eyebrows for sure.  But what is even more startling is what the employee was subjected to by his co-workers and how his employer responded (or in most cases, failed to respond).

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!

Sometimes employment lawsuits are so “funny” they almost literally make steam come out of your ears.  In one recent case, the “employee’s” claim for unpaid overtime was particularly infuriating because she never worked for her alleged employer.

The Tampa Bay Times ran an article yesterday about a business in Pinellas Park, Florida that was sued for alleged unpaid overtime by two former employees.  The business owner didn’t believe he owed anyone any overtime or that he had violated the FLSA, so he hired an attorney to fight the lawsuit.  He was upset about having to spend money to defend himself, but he was even more concerned because he had never heard of one of the two plaintiffs suing him, even though he knew all of his current and former employees.

A previous post discussed a huge jury verdict for an employee who was harassed and mistreated at work due to her religion.  The lesson:  harassing an employee, subjecting her to a hostile work environment, and retaliating against her for complaining about harassment are all wrong, illegal and expensive.

A decision handed down yesterday by the federal appeals Court covering Georgia, Alabama and Florida has made that point again.  In doing so, it further explained that retaliating by creating a hostile work environment for employees who complain about discrimination also violates Title VII — and is also wrong, illegal and expensive.