Natalie Scruton Federle - ILSHRMilshrm.org/2017app/wp-content/uploads/2017/09/NatalieFederle.pdf · 3 Age Discrimination • Most employers are familiar with the Age Discrimination

©2017 Jackson Lewis P.C.

Natalie Scruton Federle

Jackson Lewis P.C. | Chicago

[email protected] | 312.803.2505

www.jacksonlewis.com2

A Twist On the Usual

• Traditional employment claims in a context that employers may notexpect

Outside Conduct Coming In

• When an employee’s conduct outside of work creates liability for anemployer

Bringing it to Work

• When employees bring “things” to work

Going High Tech

• Things to consider with technology

Traditional Legal Claims in the Employment Context

Today’s Agenda


Age Discrimination

• Most employers are familiar with the AgeDiscrimination in Employment Act

• The ADEA provides that employees over the age of40 cannot be treated differently because of their age

• Implicates an employee’s hiring, firing, discipline, etc.– all the terms and conditions of employment



But age is just a number…

An employer was found to have discriminated against a74 year-old employee based on age when it terminatedhim and replaced him with a 68 year-old employee

The 74 year-old employee needed only to show that hewas replaced by someone “substantially younger”

In Illinois, employers contend not only with the ADEA,but also with the Illinois Human Rights Act.



The Americans with Disabilities Act (“ADA”)

Protects employees with qualified disabilities fromdiscrimination in the workplace

Requires Employers to provide reasonable accommodations

Employers are familiar with:

• Requests for medical leave

• Requests for adjusted schedules

• To sit, instead of stand

• Time off from work to attend doctor’s appointments

• Dogs?





The ADA Protects the Use of Service Animals

What is a “service animal?”

• A dog that is individually trained to do work or perform tasks for a personwith a disability

Examples of work include:

• Guiding the blind

• Alerting people who are deaf

• Pulling a wheelchair

• Alerting and protecting a person who is having a seizure

• Reminding a person with a mental illness to take a prescribed medication

• Calming a person with PTSD during an anxiety attack

• “performing other duties”



Dogs whose sole function is to provide comfort oremotional support do not qualify as service animalsunder the ADA

The ADA only recognizes dogs as service animals



Where are service animals allowed?

• Service animals must be allowed to accompany people withdisabilities in all areas of the facility where the public is normallyallowed to go

• For example, in a hospital, service animals must be allowed inpatient rooms, clinics, cafeterias, or examination rooms

• But, service animals could be excluded from operating roomswhere the animal’s presence may compromise a sterileenvironment

• For example, in a restaurant service animals must be allowed inthe front of the house

• But, service animals could be excluded from the kitchen

- Even if health codes prohibit animals on the premises



There are rules

Animals must be under control

• Harnessed

• Leashed

• Tethered

• Unless these devices interfere with the service animal’s work orthe individual’s disability prevents using the device – then theindividual must control the animal through voice, signal, or othereffective controls



When it is not obvious what service an animal provides, onlytwo questions may be asked:

• Is the dog a service animal required because of a disability?

• And, what work or task has the dog been trained to perform?

Employers cannot ask about the employee’s disability, requiremedical documentation, require a special identification card ortraining documents for the dog, or ask that the dogdemonstrate its ability to perform the work or task

Allergies and fear of dogs are not valid reasons for denyingaccess or refusing service to people using service animals

• For example, must move people’s work stations



A person with a disability cannot be asked toremove his or her service animals from thepremises, unless:

• The dog is out of control and the handler does nottake effective action to control it, or

• The animal is not housebroken



In general, employers behave as if anemployee’s outside conduct cannot result inliability for the company, as long as the conductdid not occur on work time, at a work event, oron company property

Unfortunately, that is not always the case



Love hurts…the employer!

What if an employee begins dating a manager of a directcompetitor?

Should you be concerned about a conflict of interest?The sharing of your confidential information?

Can you terminate the employee?

Or is the relationship protected by an employee’s right toprivacy?



An employer terminated a low-level marketing employeeafter her immediate supervisor accused her of having arelationship with a manager at a rival company

The employee was a good employee; a long-termemployee that was promoted many times during hertenure

The employee sued the employer for wrongfultermination and intentional infliction of emotional distress

The employer lost



Members of employer’s management were aware of therelationship

One day the employee’s immediate supervisor called herinto his office and stated that the relationship created aconflict of interest

He instructed that she had to end the relationship or loseher job – he gave “a couple of days to a week” toconsider



The next day, the supervisor called her into his officeagain and said that he had “made up her mind for her”and then he transferred her to another division, whichthe employee perceived as a termination

The court found that the employee had been wrongfullyterminated because she had a right to privacy in herromantic relationship and it could not be used againsther

It analyzed the company’s policies and found that it’sconflict of interest policy did not prohibit a romanticrelationship or friendships with employees who leave thecompany and join a competitor



When things turn violent…

When is this a problem for the employer?

• When an employer knows that it has a trouble employee

The Seventh Circuit recently reversed a lower court’sdismissal of a case where the mother of an employeesued her daughter’s employer after a supervisor killedher daughter – the murder happened outside of work,not on company time



The supervisor had a history of sexually harassing youngfemale subordinates. He was known to be fixated on arecent high school graduate.

The employee complained to another manager that thesupervisor would introduce her as his girlfriend, makecomments about her body, and rub himself against her.The other manager told her that she had heard othercomplaints about the supervisor and that she was alsouncomfortable with the supervisor.

The female employee finally quit because the supervisorwould not leave her alone and had begun yelling at herin public.



The supervisor then turned his attention to another employee,who also began her employment as a teenager.

The behavior resembled previous conduct: he called theemployee his girlfriend, called her obscenities in front ofcustomers, and would throw things when yelling at her.

The supervisor attempted to control her time away from work:denied her lunch breaks if he thought she was planning to eatwith another man; calling and texting her outside of work;requiring her to come on business trips with him.

Then, the employee became pregnant (not by the supervisor).



When she was about 7 months pregnant the supervisortold her that if she did not accompany him to his sister’swedding he would reduce her hours or fire her – invokinghis authority as a manager.

She went. After the wedding, he strangled her and rapedher corpse. Neither she nor her baby survived.

The court emphasized that management knew about thesupervisor’s conduct, with multiple women, and hadreceived multiple complaints from the deceasedemployee.

Yet, he remained employed and her supervisor.



Bringing it to Work


Zika

In 2016, parts of Miami experienced the activetransmission of the virus in people

This affected current residents of a Miami neighborhood,but also:

• Employees visiting another office in Miami for work purposes

• Employees attending a conference in Miami for work purposes

• Employees vacationing in Miami

Bringing it to Work


What can employers do when an employee comes towork after being exposed to Zika?

Or, more broadly, when the threat of a disease or virussuch as Zika is in the United States?

Panic? Not the best idea.

Ignore the possibility that an employee, or new hire, isinfected? Also, not the best idea.

If an infected employee infects another employee theemployer could be liable.

OSHA requires that employer maintain a safe andhealthy workplace.

Bringing it In


First, educate yourself on the facts, so to avoid therumors:

• How is the disease transmitted?

• Zika, for example, is not transmitted by the air, casual contact, orsurfaces

• Zika is transmitted through direct mosquito bites, sex, bloodtransfusions

Second, learn what the symptoms of the disease are:

• For Zika, the symptoms are fever, rash, join pain, red eyes,muscle pain or aches, headaches

• Note – this looks a lot like the flu

Bringing it In


Third, learn how to prevent the spread of the disease:

• Insect repellents

• Clothing that covers all skin

• Eliminate standing water

• Reassign people who may be pregnant or who may becomepregnant

Fourth, think about where employees may be travelling forwork:

• Conferences

• Other offices

• Client visits

Bringing it In


The ADA prohibits employers from making medicalinquiries or requiring medical examinations

Exception

• The ADA allows examinations/inquiries that are job related andconsistent with business necessity

• Employers are not liable when the employee poses a directthreat to the health and safety of others in the workplace

• The fear of contraction, though, does not justify an inquiry orexamination

Bringing it In


Also consider:

The ADA prohibits discrimination based upon aperceived disability

National Origin discrimination

• Many of the contagious diseases originally come from othercountries

• Be careful when an employee travels to another country – thatmay have infected persons – to visit family

Race discrimination

FMLA

Bringing it In


Bringing it In


Bed Bugs

It is not uncommon to find bed bugs in the workplace

Bed bugs are small and they hide in places like clothing,personal belongings, and shoes

That means that an employee can bring bed bugs towork and transmit them to other employees – they feedon human and animal blood (watch out for those serviceanimals!)

Mature bed bugs can survive for at least a year without a“blood meal”

Bringing it In


Bed bugs can be identified:

• Reddish brown

• Cause itchy welts in about 70% of the people whohave been bitten

• Welts typically occur in groups on exposed skin, butthey look like other bug bites

Bringing it In


What can employers do?

Send an infected employee home

Remember that this may be a sensitive issue for theemployee – confidentiality will be important

Train staff to know what bed bugs look like and how toidentify them

If found, bring in a professional exterminator

In the meantime, keep employees – and others – awayfrom infected area

Bringing it In


Consider implementing a bed bug policy

• Especially if in an area where bed bugs have been a problem

Include

• Reason for the policy – providing a safe and healthy work place

• Precautionary measures that may be taken:

- Educating employees about bed bugs and how they are spread

- Identify person to whom employees can report a case of bed bugs andnote that the communication will remain confidential

- Note that the company may engage outside professionals to inspect theworkplace periodically

- Refer to leave policies available for infected employees or those whoare afraid to come to the office

Bringing it In


Potential legal claims associated with bed bugs:

• An employee who is exposed to bed bugs at work may bring aclaim of negligence

• Employees may claim that they suffered emotional distress bybeing exposed at work and bringing the bugs into their home asa result

• Economic damages related to an infestation that starts at workand ends up in an employee’s home

• Worker’s compensation claims - a company that knows aboutbed bugs in the workplace and does nothing to correct it

• Discrimination

Bringing it In


Illinois Biometric Information Privacy Act

Passed into law in 2008

In the past year, at least 12 class actions havebeen filed against employers in Illinois state andfederal court

These actions seek damages related toviolations of the Act

Going High Tech


With advances in technology, employers have started usingbiometric data in the workplace

What is covered by the Act?

• Biometric identifiers include a retina or iris scan, fingerprint,voiceprint, or scan of hand or face geometry

• Biometric identifiers do not include writing samples, writtensignatures, photographs, human biological samples used for validscientific testing or screening, demographic data, tattoodescriptions, or physical descriptions such as height, weight, haircolor, or eye color

What is biometric data in the workplace?

• Fingerprint scans as a part of time-management software

• Facial recognition scans

• Retina scans to gain access to secured facilities

Going High Tech


What does the Act require?

• Companies that collect and use biometric information must firstobtain a written release prior to collecting such data

• Companies must adhere to requirements regarding theprotection, use, and destruction of biometric information

Think about employees who may be using the newiPhone for work purposes – it includes facial recognitionsoftware

This a hot area for plaintiff’s attorneys, so if you use anybiometric data in the workplace, you should consult withan attorney who specializes in this area

Going High Tech


Bring Your Own Devices to Work

Employers have instituted “bring you own device”policies, by which employees use personal cell phone,tablets, and computers to access the employer’s network

• i.e. having your work email on your phone

Similar risks exist for working remotely

• Working from home using a company laptop

• Using a personal laptop to connect to the company serve

Going High Tech


Potential risks include:

• HIPAA and state data security requirements – requirements relatedto the protection of information

- HR personnel, for example, have access to employee’s health benefitsinformation, FMLA forms, medical information

• E-Discovery issues

- If emails, text messages, voice messages, etc. become subject todiscovery in litigation, it can be difficult to obtain the information from anemployee’s personal device

• Wage and hour issues

- When employees can access work anywhere, they may work off-the-clock

- It is also difficult to defend against wage and hour claims when anemployee claims that he or she worked at home checking emails,reviewing documents, etc.

Going High Tech


Potential risks include

• Traditional workplace issues

- Workplace harassment

Text messages

- Discrimination

- Privacy issues

- Employers have a difficult time monitoring and prohibiting thisconduct when it is not happening during working hours, on acompany device, or in the office

• Record retention and destruction of documents

Going High Tech


Defamation

Fraudulent Misrepresentation

Tortious Inference with Prospective BusinessRelations

Wage Assignments

Child Support

Paid Sick Leave & Terminations

Retaliatory Discharged based on public policyissues

Traditional Legal Claims in the EmploymentContext


THANK YOU

With 800 attorneyspracticing in major locations

throughout the U.S. andPuerto Rico, Jackson Lewisprovides the resources to

address every aspect of theemployer/employee

relationship.

Documents

Natalie Scruton Federle - ILSHRMilshrm.org/2017app/wp-content/uploads/2017/09/NatalieFederle.pdf · 3 Age Discrimination • Most employers are familiar with the Age Discrimination