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By Bobbie M. James

According to the ILO, “Americans work 137 more hours per year than Japanese workers, 260 more hours per year than British workers, and 499 more hours per year than French workers.” Employees working long hours can experience numerous mental, physical and social effects. With the private sector showing no sign of reducing the work hours of its employees on its own and technology making it easier than ever to reach anyone anywhere at any time, it is no surprise that policymakers are seeking to improve work-life balance through legislation.  Countries such as Germany, Italy, and, most recently, France and the Philippines, have enacted “right-to-disconnect” policies, which prohibit contacting employees during non-work hours.  Now, the so-called “Do-Not-Disturb” movement is spreading across North America to Canada and the United States.

In March of 2018, New York City Council members introduced a proposed law prohibiting private employers with more than 10 employees from requiring their employees to check and respond to their work emails, or any other work-related communications, during non-work hours. Two exceptions to this proposed rule are employees working overtime and emergency matters.  Employers who break this law would be subject to fines of $250 per violation.  As of January 17, 2019, the law is currently with the Committee on Consumer Affairs and Business Licensing.

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Edgar M. Rivera, Esq.

On February 9, 2019, the Fourth Circuit in Parker v. Reema Consulting Services, Inc. reversed the district court by holding that an employer may be liable under Title VII for sex-based discrimination by participating in the circulation, and acting on, a false rumor that a female employee slept with her male boss to obtain a promotion.

In December 2014, Reema Consulting Services, Inc., (“RCSI”) hired Evangeline Parker as a clerk at one of its warehouse facilities.  After several promotions, in March 2016, RCSI promoted her to Assistant Operations Manager.  About two weeks after that promotion, she learned that several male employees were circulating an unfounded, sexually-explicit rumor that falsely portrayed her as having had a sexual relationship with a higher-ranking manager, Demarcus Pickett, to obtain her promotion.  The rumor originated with another RCSI employee, Donte Jennings, and the highest-ranking manager at the warehouse facility, Larry Moppins, participated in spreading it.

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By Edgar M. Rivera, Esq.

On January 29, 2019, in Gilberg v. California Check Cashing Stores, LLC, the Ninth Circuit held that a prospective employer violates the Fair Credit Reporting Act (FCRA)—an act passed in 1970 that regulates the collection of credit information and the access to credit reports to ensure fairness, accuracy and privacy of the personal information contained in files of credit reporting agencies—by including information on a disclosure form unrelated to rights protected by the FCRA. 

Desiree Gilberg applied for a job with California Check Cashing Stores, LLC (“CCC”).  As part of her application, Ms. Gilberg signed a separate form entitled “Disclosure Regarding Background Investigation.” This form contained not only a disclosure as required by the FCRA (stating that the prospective employer could obtain a consumer report on her) but also additional disclosure requirements for seven other states.  That is, the disclosure did not just include a summary of Ms. Gilberg’s rights under the FCRA, but also the rights of applicants who reside in several states based on additional, state-specific statutes.  Ms. Gilberg worked for CCC for five months before voluntarily resigning and then bring a suit alleging that CCC failed to make a proper FCRA disclosure.

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In Kleber v. CareFusion Corporation, CareFusion Corporation (“CareFusion”) denied job applicant, Dale Kleber, 58-years-old, the position of senior in-house counsel.  Mr. Kleber sued CareFusion for age discrimination, claiming that CareFusion’s policy of not hiring applicants with more than seven years of experience violated the Age Discrimination in Employment Act (“ADEA”).  The district court dismissed the claim, concluding that the ADEA did not allow job applicants to bring a disparate impact claim against a prospective employer.  A divided panel of the Seventh Circuit reversed the district court’s decision, and CareFusion appealed to the Seventh Circuit en banc, which upheld the district court’s decision.

In March 2014, Mr. Kleber applied for a position as senior in-house counsel at CareFusion. The job description required applicants to have “3 to 7 years (no more than 7 years) of relevant legal experience.”  Mr. Kleber was 58 at the time and had more than seven years of relevant experience.  CareFusion, however, passed over Mr. Kleber and instead hired a 29-year-old applicant who met, but did not exceed, the prescribed experience requirement.  Mr. Kleber sued, claiming that CareFusion’s policy of establishing the maximum years of experience for jobs, discriminates against older workers in violation of the ADEA, on the theory of disparate impact. Disparate impact occurs when policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group.  On January 23, 2019, the Seventh Circuit en banc heard the case but did not consider whether CareFusion Corporation discriminated against Mr. Kleber on the basis of age because it found that § 4(a)(2) of the ADEA did not apply to Mr. Kleber at all.

The Seventh Circuit reviewed the original language of the statute, which “makes it unlawful for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.”  The Court held that this language “plainly demonstrates that the requisite impact must befall on the individual with ‘status as an employee’” and does not extend to applicants for employment.  Further, “common dictionary definitions confirms that an applicant does not have an employment status,” explained the Court.  As such, the Court reversed the panel’s decision and affirmed the district court’s decision to dismiss Mr. Kleber’s claim.

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By Edgar M. Rivera

In Kassa v. Synovus Bank, a federal district court in Georgia granted summary judgment in favor of Synovus Bank (the “Bank”), concluding that a mentally ill employee’s sexist comment was not related to his disability and, therefore, the Bank’s decision to terminate him for the comment was not discriminatory.  The court found that Eleventh Circuit law did not support the employee’s argument that the comment directly related to his conditions, including intermittent explosive and impulse control disorders, and should not have resulted in termination.  This case is important because it is one of the few cases dealing with the intersection between different protected classes, specifically, disability and sex.  This case also deals with an open issue in many circuits: whether misconduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.

Since 2013, Tony Kassa has been under care for intermittent explosive disorder, paranoid personality disorder, and alcohol abuse.  Over the years, Mr. Kassa received treatment for depression, anxiety, intermittent explosive disorder, bipolar disorder, alcohol addiction, paranoid personality disorder, and impulse control disorder.  In 2015, Mr. Kassa began working for the Bank as a Network Support Analyst.  In 2016, Mr. Kassa was moved to the ATM team day-shift, which involved answering customer service calls.  In Mr. Kassa’s first performance review, Mr. Kassa earned an “Exceeds Expectations” review in technical resource but “Below Expectations” review in team performance.  On July 20, 2017, Mr. Kassa answered a call from a female Bank teller regarding a customer’s problem with the ATM at her branch.  After a problem with one of his coworkers during the call, Mr. Kassa told the teller, “Nothing personal, I hate working with women.”  She responded “oh, that’s, that’s . . .” and then stopped talking.   Mr. Kassa then added, “Nothing personal, you might be totally different, I don’t know.”  The teller’s manager contacted Mr. Kassa’s supervisor to complain about the call between Mr. Kassa and the teller.  The Bank investigated by listening to a recording of the conversation and decided to terminate Mr. Kassa.  Among other things, Mr. Kassa claimed that he is disabled and that the Bank discriminated against him by terminating him because of his disorders.

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In Anderson v. Postmaster General, the United States Postal Service (“USPS”) fired Dipping Anderson, a postal service police officer (“PPO”), for allegedly sleeping on the job.  Ms. Anderson sued the USPS, claiming that USPS had retaliated against her for having filed previous complaints with Equal Employment Opportunity Commission (“EEOC”).   After a seven-day bench trial, the district court concluded that Ms. Anderson was not discriminated against but the decision to terminate her employment, rather than impose lesser discipline, was in retaliation for her EEO complaints.  USPS appealed to the First Circuit, seeking to reverse the district court’s decision.

Ms. Anderson worked for USPS for eighteen years and, for the first sixteen years, was never disciplined.  In 2011, Ms. Anderson took time off work for a work-related ankle injury.  In May 2011, when Ms. Anderson reported back to work with her doctor’s permission, her supervisor refused to allow her to work for no apparent reason.  Ms. Anderson ultimately returned to her post and requested pre-complaint counseling, in which she alleged race discrimination.  In June 2011, Ms. Anderson attended an EEO conference with her superiors.  The conference, however, did little to resolve any issues between them, because in 2012, Ms. Anderson made several more requests for pre-complaint EEO counseling.  One of Ms. Anderson’s superiors was so angry that she had made complaints of discrimination, that he told a co-worker, “I want her gone. I want her gone before I retire.”

Finally, on June 12, 2013, USPS suspended Ms. Anderson without pay for sleeping on the job.  Even though Ms. Anderson denied sleeping on duty and USPS’s investigation made no factual finding of the incident, on September 9, 2013, USPS terminated her employment.  In the end, the Court credited Ms. Anderson’s version of events, for there was evidence showing that Ms. Anderson was using her cell phone during the time in question.

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By Crismelly Caso

Despite the fact that 1 in 5 American adults experience a mental illness every year, mental health is not something everyone feels comfortable talking about, especially not with their employers. Bipolar disorder—a disorder associated with episodes of mood wings ranging from depressive lows to manic highs—is one such condition that can be, without treatment and accommodations, particularly challenging to manage in the workplace.  Moreover, the stigma associated with bipolar disorder often impedes some individuals from publicly exercising their rights under federal, state and city laws.

Many may think that bipolar disorder is rare but, in the United States alone, there are approximately 5.7 million people suffering from the disorder.  In fact, it is the sixth leading cause of disability in the world.  There are two types of the bipolar disorder: Bipolar I and Bipolar II.  Bipolar I involves periods of severe mood episodes from mania to depression, while Bipolar II disorder is a milder form of mood elevation, involving milder episodes of hypomania that alternate with periods of severe depression.

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In EEOC v. Wal-Mart Stores Inc., on behalf of Paul Reina—a deaf, visually impaired, and intellectually disabled, cart pusher—the EEOC sued Wal-Mart Stores Inc. (“Wal-Mart”) under the Americans with Disabilities Act (“ADA”) for failure to accommodate Mr. Reina’s request to work with a “job coach.”  Wal-Mart moved for summary judgment, which on December 18, 2018, a federal district court denied on the grounds that disputed issues of material fact remained as to whether Mr. Reina was a “qualified” individual and “whether allowing a permanent job coach was a reasonable accommodation.”

In 1998, Mr. Reina began working at Wal-Mart as a cart pusher.  In 1999, Wal-Mart allowed Mr. Reina several accommodations, including the ability to work with a job coach.  The job coach assisted in several ways, including watching for oncoming cars, helping Mr. Reina stay focused on tasks, prompting Mr. Reina to help a customer if a customer needed help loading their car, and steering longer lines of carts.  Over the years, Mr. Reina worked with several different job coaches and, with their assistance, Mr. Reina’s performance ratings were generally positive.

Working with a job coach did not go without incident.  In 2012, a shift manager reported an altercation between Mr. Reina and a job coach.  Caught on tape, the job coach was seen physically abusing Mr. Reina.  The police said the report was unfounded because there were no physical injuries.  This incident, however, made Mr. Reina’s direct manager question Mr. Reina’s need for a job coach and asked Mr. Reina to provide medically supported information about his condition and reasonable accommodation.  Mr. Reina’s physician confirmed that Mr. Reina needed a job coach to do Mr. Reina’s “seeing and hearing.”  What happened after that is disputed.  The manager claimed that he asked for more information but Mr. Reina denied that the manager made such request, instead telling him to wait to hear from him.  Mr. Reina was not placed on a schedule or contacted and lost access to Wal-Mart’s job portal.

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By Leah Kessler and Crismelly Caso

Martin Luther King Jr. Day (or “MLK Day”) is a federal holiday observed on the third Monday of January each year to celebrate the life and achievements of Martin Luther King Jr., an influential American civil rights leader.

Dr. King’s sustained political activism has influenced and improved our country in countless ways, including the passage of the Civil Rights Act of 1964 (“CRA”), which in turn created the Equal Employment Opportunity Commission (“EEOC”)—a federal agency that administers and enforces civil rights laws against workplace discrimination.  As a result, in 2017, 84,254 individuals filed charges with the EEOC, seeking legal recourse against employers subjecting them to work environments in which they were demeaned and dehumanized.  He was closely involved in the passage of the National Labor Relations Act—which established the right of all workers to form unions and bargain collectively with their employers regarding their working conditions and wages.

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By Leah Kessler

Last year, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, which we blogged about here.  In doing so, New York has increased the safety of men and women in the workplace.  This is an important task, as there are approximately 321,500 cases of rape and sexual assault reported annually in the U.S.—a number far less than the projected actual number, as victims are often too afraid to report their experiences.  These laws are an important step forward, effectively holding employers and companies to a higher standard to improve the workplace, especially for the over 74 million women in the labor force today.

In May 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act—comprehensive legislation aimed at addressing and preventing sexual harassment in the workplace.  Notably, this act expands the City Human Rights Law in cases of gender-based harassment by increasing the statute of limitations to bring claims to the New York City Commission on Human Rights from one- to three-years, regardless of the size of their employer.  In addition, it requires all employers in the City to display anti-sexual harassment rights and responsibilities in both English and Spanish.  Employers are also required to post a mandatory notice provided by the New York City Commission on Human Rights as well as a mandatory notice to all new hires. (The notices are found here and here, respectively.) Employers must already be in compliance with these posting requirements.

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