ADA and Batman—by Robin

March 27, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

Recently, Ben Affleck stepped down from directing the new Batman movie to focus on his recovery following recent treatment for alcoholism. His reason for stepping down was due to his belief that he was unable to give the directing role the focus and passion it requires.  Alcohol in the workplace

Alcoholism and drug addiction present complicated issues under the Americans with Disabilities Act (ADA). The ADA protects “qualified individuals with disabilities” – individuals who can perform the essential functions of their position (or the position they are seeking) with or without reasonable accommodation. “Disability” is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment.

Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” (and therefore not protected by the ADA) when the employer takes action on the basis of their drug use. However, the ADA may protect a recovered addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability.” The ADA may protect an alcoholic who can meet the definition of “disability.”  Notwithstanding, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.

In the event an employee engages in misconduct or poor performance due to alcohol or drug abuse, the employer is entitled to discipline the employee. If the employer determines that discipline is necessary, the nature of the discipline should be the same that it would be for any other employee for failing to meet the employer’s performance standards or who engages in similar misconduct.

An employee whose poor performance or misconduct is due to the current illegal use of drugs is not covered by the ADA. Therefore, an employer has no legal obligation to provide a reasonable accommodation and may take whatever disciplinary action is appropriate, although the employer can offer the employee leave or other assistance so that the employer may receive treatment. On the other hand, an employee whose performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation to obtain some form of treatment, separate and apart from any disciplinary action the employer may choose to implement, assuming the discipline is not termination.

Like Ben Affleck, if the employee self-discloses their alcohol addiction before any performance related issues or misconduct surfaces, then the employer would be required to offer a reasonable accommodation; perhaps time off or a modified work schedule in order to attend treatments. The Family and Medical Leave Act also applies to eligible employees who seek treatment for drug and alcohol related conditions.

While Ben Affleck decided to go public with his addiction, most employees do not. Employers must be mindful of confidentiality requirements to ensure that information relating to employees’ disabilities or accommodations are kept confidential. It is human nature for employees to be curious or perceive that certain employees are given preferential treatment. Regardless of any morale issue, employers must respond to such inquiries that they do not discuss one employee’s situation with another in order to protect the privacy rights of all employees.

Caught AND recorded in the act

September 10, 2014 - by: David Kim 1 COMMENTS
David Kim

E-mails, audio recordings, and video surveillance. This trifecta of evidentiary support was put front and center in two disturbing incidents from the sports world that made headlines in the past week.

Earlier this week, Atlanta Hawks controlling owner Bruce Levenson stepped down, stating his intention to sell the team, because of a 2012 e-mail that he had written and that was to (and eventually did) become public. In the e-mail, Levenson expresses his thoughts on attracting more white fans to the arena and marketing to white fans in general, including for example that there were “not enough affluent black fans to build a significant season ticket base” and that he wanted “some white cheerleaders” and “music familiar to a 40-year-old white guy.” Levenson, in stepping down, issued a statement apologizing for his e-mail and its “inflammatory nonsense.” Interestingly, Jason Whitlock, an African-American columnist for, and former NBA player Kareem Abdul-Jabbar have both written pieces that have defended Levenson and his e-mail, stating that the Hawks owner is not a racist, but a businessman asking reasonable questions about race and how to put customers in seats.

It has come to light that the existence of Levinson’s e-mail wasshutterstock_180735251 actually uncovered as a result of an investigation due to a separate incident. In June, Atlanta Hawks General Manager Danny Ferry had a conference call with the various owners of the organization, which was recorded so notes could be made for the partners unable to participate live. In discussing player personnel issues, Ferry allegedly was reading off a report generated by team sources when he spoke about then-free agent Luol Deng (now signed with the Miami Heat) and stated “he has a little African in him. Not in a bad way, but he’s like a guy who would have a nice store out front but sell you counterfeit stuff out in the back” and further describing Deng as a two-faced liar and cheat. As a result of Ferry’s comments, a minority owner of the Atlanta Hawks spearheaded an investigation that eventually also led to the discovery of Levenson’s e-mail. Ferry has issued an apology but has refused to step down as GM despite outside pressure to do so.

And finally, the biggest news in the sports world this week involves the video of now former Baltimore Ravens running back Ray Rice punching his then fiancé and now wife, in a hotel elevator in Atlantic City, NJ. Although the incident occurred in February, the graphic video of the action inside of the elevator was just made public this week by TMZ. Previously, the only video made available to the public (and allegedly to the NFL and the Ravens) was video from outside the elevator that showed Rice pulling his apparently unconscious fiancé from the elevator. Until TMZ’s release of the second video, Rice had been suspended by the NFL for only two games, an amount universally decried and that Commissioner Roger Goodell later admitted was an egregious mistake, prompting him to institute more stringent domestic violence penalties. With the release of the second video and amidst a firestorm of people outraged by its contents, Rice has now been released by the Ravens and suspended indefinitely by the NFL. So many questions remain unanswered. Did the NFL and/or the Ravens have access to and view this new video prior to Rice’s two-game suspension? Did they ask for access to it? And on and on. About the only thing everyone seems to know for sure is that this video depicts a horrific and heinous act.

One question being debated is why does it take the existence of this video for Rice’s punishment to be increased – shouldn’t he have been punished this severely no matter what? While the moral answer is most decidedly yes, the reality is that seeing something this horrific has a much more visceral reaction than hearing about it.

And these days, the ability to record audio and video is as easy as ever. It’s not just grainy surveillance video, either. Mobile phones and other portable devices can record video or capture audio of anyone the user wishes. It used to be that the common warning was to watch what you put down in an e-mail. E-mails are preserved, and what’s in writing could harm a company down the road, whether it be in connection with employee complaints, actual litigation, or labor issues, to name a few. Still true, but these days you have to watch what you do period, because of the concern that your actions and statements will be captured in audio or video recordings. That is especially true since most states, not all, permit you to record a conversation you are a party to without informing the other party they are being recorded.

E-mail still comprises a large portion of discovery with respect to employment-related matters, so of course you should continue to ensure that e-mail is used appropriately and professionally. More and more often, however, audio and video recordings also are being uncovered and produced in employment-related matters and often are the key evidentiary element in the case. Sometimes they are favorable to an employer’s defense. Sometimes they form the basis for plaintiffs’ claims. The key is understanding that this form of evidence exists and can be obtained and that it’s only going to increase in usage with the advent of better technology. So be wary. If , as they say, a picture is worth a thousand words, then a video is worth about a million of them.

Learning from tragedy–depression and mental health in the workplace

August 17, 2014 - by: Josh Sudbury 2 COMMENTS
Josh Sudbury

This past week, the entertainment world lost one of its best and brightest to an apparent suicide. Robin Williams, who brought laughter to so many for so long, took his own life at the age of 63. So much has been written about his talent over the past week that it’s difficult to understand or accept how such a thing could have happeneshutterstock_198363611d. But, Robin Williams’ tragic death is a reminder to all of us of the very real and very serious presence of anxiety and depression in our daily lives regardless of whether we ourselves or a close friend or family member suffers from these afflictions.

Just as much as depression can affect our home and family lives, it also has a serious impact at work. In 1995, the National Institute of Mental Health estimated that as many as 1 in 20 employees was suffering from depression. So, count how many employees work for your company and do the math. If you are a company of any size, it’s likely that at least one or more of your employees may be dealing with his or her own depression or that of a family member.

Depression may manifest itself in any number of ways, including decreased productivity, morale problems, lack of cooperation, safety risks and accidents, absenteeism, complaints of being tired all the time or of unexplained aches and pains, and/or alcohol and drug abuse, just to name a few. These symptoms can be present periodically or persistently. And the threat may not be only to productivity but also to the safety of the individual and his or her coworkers.

But, you may be asking yourself, “what’s an employer to do?” It’s highly likely that neither you nor the members of your management team are properly trained mental health professionals. It would be much more appropriate for your company to establish an Employee Assistance Program (EAP) to help employees with personal problems that can affect their well-being and work performance. An EAP can provide counseling or treatment to assist employees (and their family members) with issues such as (1) substance abuse, (2) financial problems, and (3) emotional distress, among others. Employers offering an EAP should be sure to communicate to employees that treatment is confidential (unless an EAP counselor is legally required to disclose information such as child abuse) and won’t become a part of their personnel records.

Even if you have an established EAP or other similar program, you would not want your management staff going around asking every underperforming employee whether they are suffering from depression. Rather, the important thing is to train supervisors to spot performance and morale issues when they occur and report them to the appropriate individuals, either within management or human resources, so the company can address the situation appropriately.

Once the appropriate company representative is notified, he/she can approach the affected employee in a way that doesn’t encroach upon the individual’s privacy while offering an opportunity to get the needed help. The best way to do this is to approach the situation with a focus on the employee’s particular performance deficiency. For instance, the supervisor could say to the employee: “I have noticed you’ve been coming in late more frequently and that the product of your work has not been up to par. I do not know if this is the case for you, but you should know that if personal issues are affecting your work, the company offers an assistance program you can contact confidentially,” as opposed to saying, “You seem depressed. Is something wrong?” In addition, if the employee comes to a supervisor and talks about mental health problems, the supervisor should listen but not try to diagnose, and should recommend that the employee seek help from a professional regardless of whether the company has an EAP.

Though it may be difficult, it is important to address the signs and symptoms of mental illness in the workplace as they appear. Establishing an EAP or similar program is one way to provide help to your employees when they most need it and may improve the overall safety of your workforce.

Lactation intolerance

Kristin Starnes Gray

When Karlesha Thurman got ready for her college graduation ceremony, she probably had no idea that she would be picking up international news coverage along with her accounting degree. Thurman’s three-month-old daughter became hungry during the festivities and Thurman did what countless other mothers have done–she nursed her hungry baby. A friend snapped a photograph of the moment and Thurman later posted it to Facebook in an effort to show that breastfeeding is “natural, it’s normal, there’s nothing wrong with it.” Thereafter, the photograph went viral and added further fuel to the widespread debate on public breastfeeding with supporters pointing out that it’s natural and healthy for babies and critics arguing that it should be kept behind closed doors. shutterstock_161446934

The public breastfeeding debate has even inspired a new form of civil disobedience–the nurse-in. If you’re not familiar with the term, participants band together to nurse in public in a particular location at a particular time to show their solidarity. Some nurse-ins also include participants handing out pamphlets and other educational information about breastfeeding. Despite public health organizations and others trumpeting the health benefits (for both mothers and children) of breastfeeding, public breastfeeding remains a source of controversy and disagreement.

Although many of the comments were negative, Thurman has a lot of supporters. Indeed, public breastfeeding is legal in all 50 states, and most states have laws specifically allowing women to breastfeed in any public or private location. There are an increasing number of laws protecting breastfeeding mothers, including working mothers who face unique challenges of their own.  For example, the Affordable Care Act amended the Fair Labor Standards Act to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has need to express the milk. Employers also are required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. In addition, various states have enacted their own laws addressing lactation breaks for working mothers.

X-Men playing catch-up on genetics–the real-life wave of the present

May 27, 2014 - by: David Kim 0 COMMENTS
David Kim

Remember when the study of genetic information was deemed to be the purview of those in the medical field or reserved for films and television shows that were classified as “futuristic science fiction”? Not anymore. Today we live in a world where everyone is fully aware that their own genetic code and family history could be easily obtained, analyzed, and dissected, along with the sheer paranoia that comes with that knowledge.

This awareness is the result of extreme technological and medical advances and their dissemination, and accompanying commentary, through articles, blogs, and anything else that resides on the Internet. If that’s not enough, just turn on the TV or go to the movies and you’ll be inundated with characters being persecuted because of their genetic makeup.

The newest X-Men movie opened this past week, and while it’s a comic book movie filled with action and time travel, the underlying theme (yes, there is one) concerns the fear and subsequent discrimination and government action against individuals with mutated genes. On Orphan Black, BBC America’s hit TV show (yes, it’s on BBC America and yes, it’s quite popular), the main character discovers that she is one of many clones leading their own independent lives, and who eventually finds herself (or themselves) in the cross-hairs of the authorities, the medical institution that seemingly “created” them, and a mysterious religious organization with unknown motives. On Game of Thrones recently, Tyrion Lannister, on trial for the murder of King Joffrey, angrily exclaims that he is “guilty of being a dwarf,” not of killing Joffrey, noting his belief that his genetic predisposition is the reason he is being condemned.

What’s the relevance you ask? Well, I’m not suggesting employers need be worried about the disciplinary procedures related to an employee who has adamantium claws like Wolverine, or about the repercussions of an employee disclosing he or she is a clone. Nor am I suggesting that employers have highly sophisticated screening mechanisms to ensure that only genetically superior individuals can work there such as in the 1997 movie Gattaca.

But the truth is that people watch these type of shows and movies in droves, and read articles about genetic testing in the news or on the Internet, and come away believing the more subtle nuances and themes presented. Is it that genetic mutations will make someone able to fly? No. But is it that someone’s genetic background and information can be easily obtained, either by the government or their employer, and potentially used against them? Yes.

And while some part of this is paranoia and fear, some has actually become reality. Such a reality that the Genetic Information Nondiscrimination Act of 2008 (GINA) was enacted. Title II of GINA, which took effect on November 21, 2009, makes it illegal to discriminate against employees or applicants because of genetic information and strictly limits its disclosure. In addition to GINA, a number of states have laws prohibiting discrimination on the basis of genetic information.

Certain genetic traits also are already protected by other statutes. For example, people of short stature are often protected by the Americans with Disabilities Act because certain known causes of dwarfism are protected as disabilities. GINA, however, greatly expands the protection afforded to an individual’s genetic information. Just last year, the Equal Employment Opportunity Commission (EEOC) filed its first lawsuit against an employer for genetic discrimination under GINA. The employer had requested an employee provide certain family medical history during its post-offer medical examination, a violation of GINA, and ended up paying $50,000 in its settlement with the EEOC.

While certain exceptions apply, such as information obtained in connection with the Family and Medical Leave Act process, employers need to be wary not to request information from employees that could violate GINA so that it does not appear later that an adverse decision was made based upon this information. While it may seem like paranoia, an employee may believe that his or her genetic information was obtained by the employer and used as a basis for an employment decision. After all, this injustice is happening to their favorite characters on both the small and big screen virtually everyday.

Moneyball redux: What can it buy you?

November 23, 2013 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I’m not shy about going back to the well. Last month I posted some lessons HR professionals could take from Billy Beane’s roster management of the Oakland A’s, as told in the bestseller, Moneyball.

For my money, Beane’s innovations as GM of the cash-poor A’s put him in the upper ranks of baseball executives among the likes of Branch Rickey, who first made use of an organized farm system to grow talent for my beloved St. Louis Cardinals (before he went on to sign Jackie Robinson with the Brooklyn Dodgers). Now that Brad Pitt has played him in the theaters, people from all walks of industry are clamoring for a bit of Beane’s mind, and personnel managers have been at the front of the line.

If you have to ask why, look around you right now. You are probably reading this on a digital display set into a laptop, tablet, or smartphone. That device is tethered to the ether (likely through your employer) where a server down the hall, in Seattle, in Bangalore, or who-knows-where is making a little record that you, my poor reader, lingered over my humble musings.

Five minutes ago, it also noted the nasty joke you forwarded to a buddy in another office, and it saw that your buddy (not as good a friend as you thought) felt that your joke warranted HR’s attention and sent it to his office HR rep. If asked, the server holds a map of the 16 times in the last three months you’ve crossed this line, and is just waiting for someone to call up this information that will twist the knife you’ve stuck in your own back. (If you’re wondering what it knows about all that stuff you’ve been copying to the used one terabyte hard drive you bought online last week, well … let’s just say you don’t want to do that anymore.)

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