In the course of determining whether a plaintiff’s ADA Complaint should be dismissed, a court had the opportunity to examine an innovative technical attack upon a hospital’s rejection of a CNA’s application for a job which required heavy lifting. The plaintiff alleged that since an offer of employment was contingent not just upon a medical exam, but also upon an employment verification and a criminal background check, the job offer was not a “real” offer.
The plaintiff in Taylor v. Renown Health applied for a transfer into a particular medical unit dealing with patients who have heart conditions or who are obese or morbidly obese. Accordingly, the ability to lift considerable amounts of weight was an essential function of the job. Plaintiff was interviewed and received an offer of employment with the contingencies described above. She was directed to set up a medical exam. During the exam, the plaintiff disclosed to the examining doctor that she had limited movement in her left shoulder and the doctor found that she had limited arm strength. The plaintiff later was informed that she would not be hired because her physical limitations would impair her ability to perform the essential functions of the job.
The plaintiff pointed out that a medical examination may only take place when employment is contingent upon that examination. Plaintiff argued that since the job offer she received was contingent not only upon a medical examination, but on non-medical conditions (employment verification and a criminal background check) the employment offer she had received was not “real” and the employer violated the ADA by requiring her to have a physical exam. In support of its position, she cited a court case which found a violation of the ADA where the plaintiffs were given offers of employment contingent upon the completion of both background checks and medical exams. In that case, that court had held that by conducting a medical exam prior to the completion of all non-medical conditions the employer had failed to establish that the job offers were “real.” Thus, the plaintiff in Taylor argued that a job offer involves a two-step process, with the first step being the satisfaction of all non-medical contingencies and examinations, and the second step being the medical exam itself.
The court rejected that technical approach. It stated, in essence, that the ADA included the provision of a job offer prior to a medical exam so that there was only one remaining factor, the medical exam; and, an employer could not claim that its reason for rejecting a particular application was something other than a medical condition. However, the Taylor court found that the employer was not trying to hide the reason for its decision and had made it very clear that plaintiff was not hired because of the results of the medical examination she had undergone. Further, it found that even if there had been a technical violation of the ADA, there was no evidence that the plaintiff suffered any harm because the outcome of Taylor’s medical examination would have been the same regardless of whether the examination took place after the completion of all the non-medical components of the hiring process.
Even though the court in the Taylor matter rejected the technical challenge under the ADA and dismissed the lawsuit, employers would be well advised to make sure that all the non-medical conditions have been satisfied before requiring a medical examination. When the non-medical conditions have been satisfied, there can be no argument that the job offer was not “real” and, accordingly, no argument that the subsequent medical examination violated the provisions of the ADA.
On December 12, the National Labor Relations Board (“NLRB”) issued its long anticipated, or perhaps dreaded, regulations designed to expedite elections, thus improving organized labor’s opportunities to organize. The issuance of those rules follows, by one day, the NLRB decision in Purple Communications, which is described elsewhere in this newsletter.
The regulations establish a fast track process for litigating issues involved with the election and proceeding to the election itself.
The new rules include the following:
- A hearing, if one is necessary, will generally be held within eight days of the filing of the petition.
- The day before the hearing the employer will be required to submit a list of issues it believes exists with respect to the petition’s description of the voting group, as well as a list of voters in the group described by the union and an additional list if the employer believes that other employees should be eligible to vote.
- At the hearing, individual employee eligibility normally will not be litigated. By and large, the litigation will be limited to which job groups, departments, or geography locations will be included in the election.
- Two days after the post-hearing decision on the issues, the employer will be required to submit a list of all eligible voters in the unit found to be appropriate, including their phone numbers (including cell numbers) and email addresses, where the employer has them available.
As a result of the above changes, the time between the filing of the petition and the election will be shortened from approximately forty days to, in most cases, fourteen to twenty-one days.
Since the regulations will not be effective until April 14, 2015, employers now have an opportunity to review not only their email policies, pursuant to Purple Communications, but also to consider its game plan when it becomes aware that union organizing is going on or may be starting up. Employers will no longer have the luxury of a six to seven week campaign during which it can tell its side of the story. It must be prepared to react quickly upon gaining knowledge of a union’s organizational campaign.
Can an employee record a confidential conversation with her employer and get away with it? “Yes” said a court in Kansas as it rejected the employer’s argument that such a recording was improper and unlawful.
One of the side effects of the increased presence of smart phones is the ability of individuals to record conversations with others, regardless of whether the other person knows the recording is being made or whether that conversation is a confidential one. In Domoney v. Class, Ltd., a U.S. District Court in Kansas examined a situation in which an employee had signed a confidentiality agreement with the employer which prohibited the disclosure of confidential information for any reason other than the performance of job duties and warned of legal action if such a disclosure were made. The employer subsequently conducted a confidential personal meeting with the employee in an attempt to resolve ongoing workplace disputes between the employee and a coworker. The employee recorded the conversation on her cell phone and sent a copy to her mother.
The employer attacked that recording alleging that it violated the Federal Wiretap Act. However, in doing so, it had to deal with one of the specified exceptions to the Act which allows for the interception of oral communications, such as a conversation, where one of the parties (the person recording it) gives their consent. It found that the employee, obviously, had consented to the recording. However, the employer argued that exception did not protect the recording because the Federal Wiretap Act also provides that even if there is one person’s consent, the recording may be unlawful if it was made for the purpose of committing any criminal act or civil wrong, in violation of the law.
The court concluded that for the recording to fall into that exception to the one-party consent rule, the employer had to prove that the purpose of the recording was to commit an independent wrongful act by the employee. If offered the examples of recording a conversation for later use to impeach the other participant in the conversation or the recording of a conversation to acquire evidence of possible wrongdoing in connection with anticipated litigation. It found both of those purposes to be acceptable. It also found that the wrongful act had to be one which was independent of the act of recording, in other words to support an independent outside act of wrongdoing. It found that there was no such wrongdoing and dismissed the employer’s motion.
The lesson here is clear. In the overwhelming majority of the cases, except in those few states which have not adopted the “one party consent” rule (there are approximately 12 states that require consent of all parties to the conversation) employers will not be able to attack an employee recording absent evidence that it was to be used for an independent wrongful act, such as, perhaps, extortion. In the absence of such evidence, courts will not intervene. Perhaps the real bottom line is to always be aware of the potential of such recordings and conduct business conversations accordingly.