248-409-1900 dburke@mi-worklaw.com
No CSI at Work: No Sh*t! – First GINA Decision (On Poop Testing) is Crappy for Employers

No CSI at Work: No Sh*t! – First GINA Decision (On Poop Testing) is Crappy for Employers

By:  Dan Cohen – 12/30/15

The Genetic Information Nondiscrimination Act (GINA) was signed into law on May 21, 2008.  GINA protects individuals against discrimination based on their genetic information in health coverage and in employment.  Title II of GINA makes it illegal for employers to use a person’s genetic information when making decisions about hiring, promotion, and other terms of employment. GINA also prohibits employers from requesting, requiring or purchasing genetic information and strictly limits the disclosure of genetic information. According to the EEOC, an employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.

Genetic information means information about an individual’s genetic tests, the genetic tests of family members of the individual, as well as the manifestation of a disease or disorder in family members of the individual (i.e. family medical history). Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, if the analysis detects genotypes, mutations, or chromosomal changes. Since its inception, most employers have struggled to figure out how GINA would impact the workplace beyond prohibiting them from seeking out family medical history information during post-offer medical examinations.

In Lowe v. Atlas Logistics Group Retail Services, LLC, Case No. 1:13-cv-2425 (ND GA 2015), a federal court in Georgia provided employers with a real life example of how GINA impacts the workplace. Atlas Logistics, which provides long-haul transportation services for the grocery industry, learned that one or more employees was defecating in one of its warehouses. Through its investigation, Atlas narrowed the list of possible employees to Jack Lowe and Dennis Reynolds. Atlas then retained the services of an outside lab to perform a comparison of cheek swabs from the two employees to the fecal matter that had been collected from the warehouse. The lab’s analysis was used to compare DNA from one sample to another, but could not be used to determine an individual’s propensity for disease or disorder. The test results did not produce a match, but were communicated to Atlas.

Lowe and Reynolds filed charges with the EEOC, which were dismissed. They then brought suit under GINA, alleging that Atlas had illegally requested and required them to provide their genetic information and had illegally disclosed it. The question for the court was whether the information requested and obtained by Atlas was “genetic information” under GINA. The Court answered this question in the affirmative. According to the Court, the request fell within GINA’s definition of a genetic test. The Court rejected Atlas’ contention that a “genetic test” should exclude testing that does not reveal an individual’s propensity for disease. The jury then returned a verdict of $2.2 million in damages for the plaintiffs, though the test results had no impact upon them.

Most employers would want to know which one or group of its employees was anonymously defecating in its workplace. But, I doubt any would want to spend $2.2 million to find out, or as Atlas Logistics learned, not to find out at all. This was probably a job for some good old-fashioned surveillance cameras. Because GINA is still relatively new, and case law interpreting the statute sparse, employers looking to obtain any genetic information for any purpose should consult with counsel first, less they wish to find themselves in a messy situation like Atlas Logistics. In any case, remember, don’t play CSI at work if it involves DNA testing.

The Disney Waylaid

The Disney Waylaid

By:  Bill Pilchak – 12/22/15

Some years ago, I was fortunate to attend a presentation by Bill Capodagli, author of The Disney Way, at an event presented by our Auburn Hills Chamber of Commerce and sponsored by our friends at YourSource Management Group. Capodagli wrote a book and provides training on the many facets of Disney’s success, so business may emulate their methods.

One lesson impressed me, and I suspect would resonate with other small business owners who do most every job in their company, from janitor to CEO.

It seems that a newly hired Vice President arrived for his first day on the job, parking in the employee lot some distance from Disney World’s front admission gates. As he eagerly strode across the parking lot that would soon be filled with excited visitors, he too was excited: to see his new office and meet his new colleagues. As such, he strode past a piece of paper on the ground without even noticing it. Thirty feet past the litter, he felt a sharp push against the back of his shoulder. He turned to find a young man dressed as a soda-jerk holding the trash to his face and upbraiding him, saying: “Mister, you walked right past this!” During an orientation session later that morning, the new VP learned that The Disney Way means that it’s every employee’s job to do everything possible to enhance Disney World and the Disney experience.  It’s everybody’s job to pick up trash because visitors shouldn’t see litter. Moreover, it’s perfectly acceptable for a soda jerk to remind a “suit” that picking up a piece of paper isn’t beneath him.

So, when I learned that a client would soon be providing janitorial services to one of the Disney properties, I told Capodagli’s story. I felt the tidbit might be a valuable insight to his new customer’s culture, especially given his janitorial function. “Funny,” he said. “I recently picked up a piece of paper and threw it in the trash at one of our industrial sites…and got a grievance from the union for doing bargaining unit work.”

And there, in a nutshell, is one of the biggest problems with unions. While world class operations get their team focused on doing everything possible to improve their product, service or experience, unions not only foster an “it’s not my job” mentality, but an “it’s not your job, either” mindset. Of course, leaders recognize that when it’s “not my job” and “not your job,” the job won’t get done… or will only get done later so that service and the mission suffers.

Being a Jerk at Work May Not Be Illegal, But it Sure Can Be Costly

Being a Jerk at Work May Not Be Illegal, But it Sure Can Be Costly

12/1715 – By: Dan Cohen

Loretta Rester worked as a graphic designer at the Hot Springs Village Voice, an Arkansas newspaper owned by Stephens Media. During a meeting with her supervisor, William Elderton, the newspaper’s general manager, a confrontation ensued concerning revisions to a proposed article that had been rejected by a customer. According to Rester, a “heated exchange” occurred. Elderton slammed his hands on a desk and began screaming and cursing at her. Rester said she rolled her chair back, stood up and attempted to leave, but Elderton put his hands on her three times, and physically prevented her from leaving until she began screaming and cussing.

After the incident, Rester went outside to her car for about ten minutes. She then returned and met with Elderton and the editor. Elderton apologized, and Rester worked the rest of the day. She reported the incident to the newspaper’s publisher and Elderton’s supervisor nine days later. She then met with a human resource representative a few days later. No disciplinary action was taken against Elderton. Rester tendered her resignation a week later, and rejected the newspaper’s efforts to retain her even after she was notifed that Elderton would soon be retiring.

Rester sued Stephens Media, Elderton and the human resources representative individually, alleging violations of Title VII and state law. Rester claimed sex discrimination, a hostile work environment, constructive discharge and retaliation. So, how do you think the court ruled? This should be an easy one, right? Elderton clearly crossed the line; he slammed his hands on the desk, cussed out a subordinate employee, touched her three times and physically prevented her from leaving the scene. Oh, boy! This has all the makings of a large verdict against the defendants, right? Wrong!

The jury never even heard the case because it was dismissed by the district court and upheld by the Eighth Circuit on appeal. The case is Rester v. Stephens Media, LLC, et al., 739 F.3d 1127 (8th Cir).

But why?

Sex Discrimination

To meet her prima facie case of sex discrimination, Rester was required to prove she (1) belonged to a protected class; (2) possessed qualifications to perform her job; (3) suffered an adverse action; and (4) was treated differently than similarly situated employees outside the protected class. Only the third and fourth elements were in dispute. Because “Rester suffered no termination, did not lose pay or benefits, and her job duties and responsibilities did not change,” she could not meet her prima facie case of sex discrimination. The Court noted further that “the record contains no evidence to support the fourth element that she received different treatment because of her sex. Rester has not shown that Elderton’s actions were motivated by her sex.”

Sexual Harassment

Rester was required to show (1) membership in a protected group; (2) the occurrence of unwelcomed sexual harassment; (3) that the harassment occurred because of her sex; and (4) that the harassment affected a term, condition or privilege of her employment. Looking at the totality of the circumstances, the Court determined that “[t]his singular incident, while most unfortunate, does not meet the standard required. The incident related to a workplace disagreement and the conduct does not denote a sexist connotation. On this record, Rester has failed to establish that this incident permeated the workplace and thus has not established a prima facie case of a hostile work environment.” According to the Court, a hostile workplace requires “extreme” conduct “rather than merely rude or unpleasant” conduct.

Constructive Discharge

To establish a case of constructive discharge, Rester had to show that (1) a reasonable person in her situation would find the working conditions intolerable, and (2) the employer intended to force her to quit. The Court also noted that “[a]n employee must, however, grant her employer a reasonable opportunity to correct the intolerable condition before she terminates her employment.” The evidence established that defendants sought to retain Rester as an employee. Nothing suggested that they should have known that Rester would leave her employment. Furthermore, because Rester’s claim of a hostile work environment failed, her claim of constructive discharge had to fail as well. The Court relied upon Penn. State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (“A hostile-environment constructive discharge claim entails something more [than an actionable hostile work environment]”).

Retaliation

Rester was required to show that “1) she engaged in protected conduct; 2) a reasonable employee would have found her employer’s retaliatory action materially adverse; and 3) the materially adverse action was causally linked to her protected conduct.” As stated above, Rester failed to establish that she was subject to adverse employment action, let alone materially adverse employment action. Thus, she cannot establish a prima facie case of retaliation.

Even though Stephens Media was spared having to try the case to a jury, which would have been costly, and could have been quite challenging because of the “jerk” factor, I bet the company was not happy it spent as much time, energy and money involved in litigating the case to the point where it could be dismissed short of trial. Certainly, with depositions and other discovery, preparation of the legal papers and convincing the trial court to dismiss the case, and defending the trial court’s ruling through the appellate process, Stephens Media still spent three years litigating the case and tens of thousands of dollars along the way.

While it is not clear in the decision whether Stephens Media provided training to its management team about discrimination and harassment in the workplace, I suspect there was none or else Mr. Elderton probably would not have screamed and cursed at a subordinate employee, let alone place his hands on her and physically restrain her from leaving the scene. In some jurisdictions, like California, harassment training is mandatory. Here in the Sixth Circuit, employers who cannot show that they conduct harassment training find it increasingly difficult to defend themselves in Title VII harassment cases. Moreover, had Elderton been counseled and required to complete anger management training, perhaps Rester would not have quit and then filed suit.

So, what’s the point?  Conduct training!  And, make sure you know how to manage harassment complaints – even when the complaint is about jerkism, not sexism, racism, etc!

Arm Or Disarm In The Face Of Terrorism? Implications In Michigan

Arm Or Disarm In The Face Of Terrorism? Implications In Michigan

By: Bill Pilchak – 12/08/15

In the wake of the Paris, Colorado Springs and San Bernadino shootings, Detroit Police Chief James Craig and Maricopa County (Phoenix) Sheriff Joe Arpaio called upon licensed gun owners to carry concealed weapons and use them against terrorists. Craig said on Fox News that one trained and armed citizen might have made a difference. The New York Times has reported a recent spike in gun sales after the incidents. More background checks to buy guns were conducted on Black Friday this year than any other day on record.

Few issues are as divisive. Because this country was formed by an armed uprising against a tyrannical government and the Constitution guarantees the right to own firearms, there now are an estimated 310 Million of them in the U.S. In the same way that 5 million illegal immigrants cannot be deported, 300 million guns cannot be removed from society. Robbers or terrorists will always find a way to get a gun. Someone intent on robbing or killing (both life felonies) won’t dither about a weapons violation (misdemeanors or 4 or 5 year felonies) along the way. Those of us with law enforcement experience know that violence is often random and occurs in even the most upscale communities. Michigan passed legislation years ago to liberalize a law-abiding person’s ability to obtain a concealed pistol license (CPL) in the belief that they should have an even chance against the bad guys. Now, more people around you are armed than you know.

Others fear guns, whether in the possession of a criminal, a terrorist or a scout leader and would prefer that only the government have weapons. Implicit in their position is the belief that the government will protect them if and when they are in danger. As a long-ago assistant prosecutor, I periodically met with people who had been credibly threatened with murder. Each one was told that we would prosecute the assailant if the threat were carried out, but that there was no mechanism for protecting Jane Doe. (Politicians and celebrities, yes; Jane Doe, no.) The law now provides for personal protection orders (PPOs), which as far as I know are not printed on bullet-proof paper. Personally, I would prefer to have a gun than a PPO if someone was out to get me.

Still, having presented many Employee Violence seminars after the post office shootings in the 1990’s, I understand the concern that one’s safety at work depends on a coworker’s ability to control his actions and emotions. I also understand that there is no adequate legal or societal mechanism to deal with mentally ill individuals unable to control impulses. Employers adopted no weapons policies to help prevent violence, in part by drawing a line that, if crossed, illustrated a possible loss of control to be dealt with. The number of workplace homicides has steadily declined from 1068 per year in 1993 to 475 in 2012 and 322 and 307 (shootings only) in 2013 and 2014, per the latest OSHA statistics. So, the question presented by Chief Craig’s and Sheriff Arpaio’s comments is: Are targets of traditional workplace violence (usually owners, supervisors) more secure if weapons are prohibited and only a fanatic or disgruntled employee may be armed ? Or has the threat of random mass shootings (targeting anyone in sight) become so great that the workforce is safer if peppered with armed employees? Obviously, there is no easy answer to that question, but the liability risk associated with allowing armed employees should be obvious. Any errant shot that injures a non-employee (customer, visitor, vendor) will result in a lawsuit and an injury to an employee will result in a workers compensation claim, even if intended for an armed assailant.

The issue is complicated by legal constraints on employers with respect to weapons and permits which may be asserted by employees who wish to carry weapons. The legislatures of twenty states have passed “Bring Your Gun to Work” laws that restrict employers’ ability to prohibit guns from being stored in employees’ private vehicles when parked on the employers’ premises. (Alabama, Alaska, Arizona, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, Utah, and Wisconsin.)

Michigan imposes constraints which do not reach that far. MCL 28.425(n) prohibits employers from prohibiting employees from applying for concealed pistol permits or carrying concealed weapons off duty. However, the statute “does not prohibit an employer from prohibiting an employee from carrying a concealed pistol in the course of…employment with that employer.” So, the law does not trump an employer’s right to ban weapons in the workplace or during work activities. The question arises whether the employer can prohibit employees from bringing weapons in their vehicles onto the premises, which is arguably not in the course of employment. Since workers compensation cases have ruled that walking to and from the parking lot is “in the course of work,” Pilchak & Cohen has always felt an employer could justify a “no weapons on our premises” rule, although gun advocates may argue otherwise. Still, employers must recognize that if the employee can park “off premises,” such as on the street next to the facility, the employer may have no lawful way to prohibit a disgruntled employee from having weapons close at hand at work.

Under the criminal statute, MCL 750.227, a business owner may carry a concealed pistol in his place of business, even if he or she does not have a CPL. Should a business owner (or manager in charge of a facility with a CPL) have a weapon at work? If so, what are the implications? An errant gunshot by management will have the liability implications stated above. Further, if the weapon is accessible, found and used anywhere by anyone, the business could be sued for negligence. Thus employees in general cannot practically be advised that if shooting erupts, a weapon is available at a certain location, such as the boss’ office. Placing the weapon in a safe is an alternative. Trained management or former law enforcement employees might even be given the (hopefully digital) combination. However, a pistol in a safe is not helpful when the gunman is at the business owner’s office door. That prospect argues in favor of carrying the weapon throughout the work day. However, the boss carrying a weapon either violates or denigrates the usually-present no weapons policy. And a no-weapons policy is the only thing preventing the increasingly armed population from bringing their weapons to work.

Most of the time, Pilchak & Cohen has all the answers on employment issues. However, add one insane factor like unforeseeable, random mass shootings by fanatics, and like the rest of the world we have to feel our way through the madness.