Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

October 16: "The Big Seven Employment Trouble Spots" hosted by the National Association of Women in Construction.

 

November 19, “Human Resources Issues for Business Owners” hosted by Simjee Periodontics and Cool Smiles Orthodontics.

 

November 20, “Where's the Strategy in Your Strategic Plan?" hosted by the Irwindale Chamber of Commerce.

 

Discharge of Executive Uncooperative in Investigation Legal

Applied Signal fired John McGrory.  One of his reports complained to human resources that McGrory harassed/discriminated against her because of her sex/sexual orientation.  Applied hired an outside investigator. McGrory did not like the investigator, but she exonerated him of mistreating his subordinate.  She did find, however, that McGrory was untruthful and uncooperative during the investigation.  She also found that McGrory violated the company's anti-harassment policy because he made off-color jokes related to sex and national origin.

Applied fired McGrory, not for discrimination or harassment, but for his lack of cooperation and deception during the investigation.  He sued Applied Signal, claiming not only wrongful termination, bur also sex discrimination and defamation.  He believed he was disfavored because of his male sex, that even at-will employees are entitled to notice of an investigation.

McGrory argued Allied could not fire him for participating in the investigation. The public policy of California is to shield anyone participating in an investigation of discrimination from the possibility of retaliation, presumably even if the participant is uncooperative and untruthful.

However, the court of appeal determined that refusing to participate in or cooperate with an investigation into a discrimination claim is not participation or assistance and is not a protected activity.

 

In addition, employees who lie during an investigation have no protection either. The participation immunity does not prohibit an employer from imposing discipline for an employee’s misbehavior during an internal investigation, such as attempting to deceive the investigator. Lying in an internal investigation is disruptive of workplace discipline. Whether to fire an employee for lying to the employer in the course of the business’s conduct of an important internal investigation is basically a business decision; this decision, as with most business decisions, is not for the courts to second-guess as a kind of super-personnel department.

 

McGrory also argued that the employer could not lawfully rely on fear of litigation with the accuser as a basis for firing him.  But the Court of Appeal held that fear of liability also is a legitimate, non-discriminatory reason for firing an accused harasser:

 

This case seems to strengthen the employer’s use of employment at-will and the employer's freedom to discipline and discharge those who violate policies.

 

Rarely Performed Job Function Nevertheless ‘Essential’ under ADA

The rarity with which a particular job function is performed does not render it non-essential under the Americans with Disabilities Act, the U.S. Court of Appeals has held in an unpublished decision. The Court affirmed summary judgment for the employer, a correctional facility with safety concerns, which argued the function of performing physical restraints, even though not frequently performed, is an “essential job requirement” under the ADA. The employer also was not required to convert a temporary light duty position into a permanent job for a disabled correctional officer. 

 

John Wardia worked as a Youth Worker at the Campbell County Regional Juvenile Detention Center. The main function of a Youth Worker is to “supervise and monitor activities of juveniles committed to the Department of Juvenile Justice.” A Youth Worker also must be able to perform physical restraints, if necessary. During his employment, Wardia suffered a neck injury that prevented him from performing physical restraints. He initially asked for, and received, a temporary accommodation working in the Center’s control room (a light-duty, rotating position where employees watch the facility monitors, let people in and out of the building, and document any movements). 

 

Wardia eventually underwent surgery for his neck injury, but that did not relieve the limitation on performing physical restraints. He returned to his assignment in the control room. Wardia’s supervisors were under the impression that he would be able to return to full duty. Wardia’s physician subsequently informed the Center that his disability was permanent. He then was placed on a one-year disability leave, to be considered as having resigned one year later. Two weeks before expiration of his leave, Wardia requested permanent reassignment to the control room to accommodate his disability. The Center declined Wardia’s request and he was deemed resigned from his job at the end of his leave.

 

Wardia sued the Center for failure to accommodate his physical disability in violation of the ADA. The district court granted summary judgment in favor of the Center, finding the ability to perform physical restraints was an essential job function and the ADA did not require the Center to reassign Wardia to the control room on a permanent basis as an accommodation.

 

The ADA prohibits employment discrimination against a “qualified individual on the basis of disability.” Under the ADA, a qualified individual with a disability must be able to perform the essential functions of the job, with or without reasonable accommodation. 

 

Since the evidence showed that Wardia could not perform the physical restraints normally required for the job, with or without reasonable accommodation, the issue was whether the ability to perform physical restraints was an essential job function. 

 

Wardia argued that physical restraints were too rare to be considered an essential job function and that they were “optional” in practice because weaker employees often were relieved from performing them by their stronger coworkers. Wardia also argued that the Center could have accommodated his disability by having a coworker perform physical restraints whenever the need arose or by reassigning him permanently to the control room. The Court rejected Wardia’s arguments.

 

The Court first rejected as “incorrect” Wardia’s rarity argument because the potential for physical confrontation existed daily in the facility. Further, the Court observed, the rarity of the need for physical restraints did not render the function non-essential because the inability to properly restrain juveniles could have serious consequences for the safety of staff and juveniles at the facility. If the Center did not mandate safe-physical-management skills for its staff it could be subject to liability from injured employees and juveniles, as well. 

 

The Court next determined Wardia’s proposed accommodations — requiring another worker to perform restraints for him, in particular — were not reasonable. “The ADA does not require employers to accommodate individuals by shifting an essential job function onto others.”

Reassignment to the control room also was not reasonable, the Court held, because the ADA does not require employers to convert a temporary position into a permanent one. To do so, it explained, would “frustrate the purposes of the ADA: if employers are locked into extending temporary positions for injured workers on a permanent basis (whether initially granted consistent with company policy or as a well-intentioned special arrangement), they might well be less inclined to permit such an arrangement in the first place.”

 

Factoids

• 96% of workers say they have experienced uncivil behavior and 98% say they have witnessed it.  50% of workers say they were treated rudely at least once a week. 26% of workers say they quit because of an uncivil workplace. WSJ 
• In 2008, 29.2% of workers were over 50. In 2012 it had increased to 32.3% 
• 62% of American households own a pet but only 0.3% have pet insurance however employees purchasing these policies are growing at a 7%-10% annual rate. 
• U.S. personal savings rate is 4.4%, down from 5.6% last year 
• 47% of U.S. households have credit card debt, the average debt is $15,257           

 

Quotes

“If we don't succeed, we run the risk of failure.”

~Dan Quayle~