NLRB rules against Jimmy John's franchisee: Workers lost their jobs after placing posters that protested lack of sick leave.

From:  The Star Tribune, August 25, 2014
Article by:  Mike Hughlett
http://www.startribune.com/business/272613241.html

The National Labor Relations Board (NLRB) has ruled that a Twin Cities Jimmy John’s franchisee violated the union organizing rights of six employees after firing them for publicly protesting the company’s lack of sick leave.

The decision late last week by the NLRB upholds an April 2012 ruling by a federal administrative law judge, and also calls for the six workers allied with the Industrial Workers of the World (IWW) to be reinstated and given back pay.

MikLin Enterprises, which owns 10 local Jimmy Johns’s, had appealed the administrative law judge’s decision to the NLRB’s full board in Washington D.C. One member of the three-member board dissented, finding that MikLin didn’t violate labor law. MikLin can appeal the NLRB’s decision to a federal court.

“We’re reviewing the decision and our options at this time,” said Rob Mulligan, a MikLin co-owner, declining to comment further.

Erik Forman, one of the fired workers, said in a statement that “the NLRB has said what the public already knew: workers have the right to speak out about their working conditions, particularly when those working conditions mean that customers might get food served by a sick worker.”

The union’s protests emphasized that without paid sick leave, workers were forced to work sick, potentially contaminating food.

Jimmy John’s workers allied with the IWW tried to organize MikLin’s restaurants in 2010, falling just short of victory in an unusual union campaign. Unions rarely try to organize fast-food workers, largely because they are so transient in their jobs. And the IWW is a militant, grass-roots union outside of the mainstream of the labor movement.

In October 2010, Jimmy John’s workers rejected the union by two votes, 87-85.

After the election, pro-union Jimmy John’s workers continued their organizing campaign, often emphasizing their lack of paid sick leave, a common policy in the restaurant industry.

In early 2011, the union placed posters around town displaying two identical Jimmy John’s sandwiches, with one described as made by a healthy worker, the other by a sick worker. “Can’t tell the difference?” the poster said. “That’s too bad because Jimmy John’s workers don’t get paid sick days.”

MikLin fired six workers and issued written warnings to three others involved in the poster campaign. The company has argued that the posters were “disloyal,” and therefore were not protected speech under federal labor law. One of the three NLRB board members agreed. But not the other two.

The posters were not so “disloyal, reckless or maliciously untrue as to lose (the law’s) protection,” the NLRB ruling said.

“Indeed, any person viewing the posters . . . . would reasonably understand that the motive for the communications was to garner support for the campaign to improve the employees’ terms and conditions of employment.”

The Interactive Process

What is the Interactive Process?

This summer marks the 14^th anniversary of the Americans with Disabilities Act (ADA), the nation’s first comprehensive civil rights law prohibiting discrimination on the basis of disability. While the ADA has been around for many years, the issues surrounding disability discrimination and reasonable accommodation, including the interactive process, continue.

The ADA and the Minnesota Human Right Act, require employers to accommodate the disabilities of their employees.  To help determine effective accommodations, the EEOC recommends an “interactive process” between the employer and the employee.  This simply means that the parties work together to find an accommodation that works.

1. Request Accommodation

While there is no set formula for the interactive process, it typically starts when the employee or someone on their behalf requests an accommodation.  Requests for accommodation do not need to be in writing. 

Employers should be aware that some courts have suggested that if the employer knows that an employee needs an accommodation, it may have an obligation to provide it.  The EEOC’s guidance suggests that an employer should provide an accommodation when it:  knows of the disability; knows or should know that the employee is experiencing workplace problems because of the disability; or knows or should know that the disability prevents the employee from requesting a reasonable accommodation.

2.  Communicate

Once the request for accommodation has been made or the need for accommodation is obvious, the employer should initiate the interactive process.  Generally, courts have held that the interactive process requires employers to: analyze job functions to establish the essential and non-essential job duties; talk with the employee to learn their limitations; and explore the types of accommodations.

The interactive process imposes mutual obligations on both the employer and the employee. An employee is required to provide the employer with necessary information about their disability and needs for accommodation. Courts have held that an employer cannot be liable for failing to accommodate if a breakdown in the communication process is attributable to the employee.

Similarly, if the breakdown in the interactive process is attributable to the employer, courts have generally found this to be an adverse employment action.

3. Work Together To Identify Possible Accommodations

The employee and the employer should work together to come up with different potential accommodations that allow the employee to perform the essential functions of their job. 

Employers should remember that they must provide a reasonable accommodation unless doing so would pose an “undue hardship.”  The employer bears the burden of proving that it cannot provide the employee with a reasonable accommodation because it would cause an undue hardship.  Under the law, undue hardship means “significant difficulty or expense.”  See, 42 U.S.C. § 12111(10).  The EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act states: “Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.” See, 29 C.F.R. pt. 1630 app. §1630.15(d) (1996). The Enforcement Guidance also states that undue hardship cannot “be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees.” 

If you have questions about the interactive process or are seeking help obtaining a reasonable accommodation, feel free to contact us at 612-278-9832.

Pregnancy and Accommodations: Pregnant women fight to keep jobs via ‘reasonable accommodations’

By Brigid Schulte August 4, 2014, Washington Post

At five months pregnant with her second child, Officer Lyndi Trischler found that the gun belt she was required to wear on her 10-hour patrol shifts pulled painfully on her expanding abdomen. Her heavy bulletproof vest was so tight that she struggled to breathe. She began having heart palpitations.

Months earlier, at her doctor’s recommendation, Trischler had asked her supervisors at the police department in the Florence, Ky., if she could do light-duty work in the office as her pregnancy progressed. That’s what she’d done the year before when, pregnant with her first child, she’d worked up until the day she gave birth.

But this time, the city said no: Either go out on patrol or go on unpaid leave.

So she strapped on her equipment and went out on the road, even as a new city policy granted officers who had been injured on the job the same light-duty desk work that she’d been denied. Last month, Trischler, one of only two female officers on a staff of about 60, was forced to go on unpaid leave.

“I just physically couldn’t do the job anymore,” Trischler said.

Trischler, 30, with a master’s degree in criminal justice, has just filed a pregnancy discrimination claim against the city with the federal Equal Employment Opportunity Commission. A growing number of cases like hers shows that, despite a long history of pregnant women working and a 1978 law to prohibit pregnancy discrimination, workplaces, courts and doctors still disagree on some pretty fundamental questions: What can expectant workers safely handle, particularly in physically demanding jobs such as Trischler’s? And what kind of accommodations are reasonable, legal and fair?

These disagreements can have devastating consequences: Pregnant workers who have been forced onto unpaid leave rather than receive accommodations have, according to a raft of recent discrimination cases, lost their health insurance and their income. Some, according to EEOC documents and court records, have been told by supervisors to choose — their babies or their jobs — and have either terminated their pregnancies or been fired.

“All I think about is how I’m going to take care of my daughter when I’m not making money,” Trischler said. The son she’s now carrying has a rare disorder and is not expected to live long after birth. “This is just a very, very, very, very, very stressful time.”

The mayor of Florence, Diane Whalen, said she could not comment on pending litigation. In April 2013, city officials sent a memo to all department heads saying that the city would no longer offer light duty to employees with injuries, illnesses or other medical conditions that are not work-related.

“This policy is ridiculous. It doesn’t even cover disabled people, which is required by the Americans with Disabilities Act,” said Dina Bakst, with A Better Balance, a legal and advocacy organization filing the claim on Trischler’s behalf.

While every pregnancy is different, hormone changes make women’s ligaments looser, which can lead to back pain and carpal tunnel syndrome. The expanding bulk of the belly can make it difficult to balance, bend and reach, and later in pregnancy, can compress the bladder and lungs, said Wendy Chavkin, a professor of public health and obstetrics and gynecology at the Columbia University Mailman School of Public Health, who has researched how pregnancy impacts women’s ability to work.

Pregnancy can also lead to gestational diabetes, hypertension, edema, fatigue and a host of other conditions.

“But all of that is relevant on the job only if it makes a difference in whether you can do it or not,” Chavkin said. “There is some data to show that some arduous, physically demanding jobs can collide with the needs of pregnancy. But that can often be reasonably accommodated. . . . And if we make work accommodations for men who have hernias and heart attacks, why not for pregnant women?”

Some pregnant workers need accommodations: ergonomic chairs for back pain, stools for those on their feet for hours, bathroom breaks and water for those with diabetes. And others don’t.

And while many employers do provide accommodations, others don’t. The number of pregnancy discrimination cases has been on the rise over the last decade, as have resolutions, settlements and monetary awards: $17.2 million in 2011, up from $5.6 million in 1997.

“It’s hard to think that more employers are discriminating against pregnant women,” said Chai Feldblum, an EEOC commissioner since 2010. “We’re not really sure why complaints are increasing. Perhaps more women are realizing that they have the right not to get fired if they get pregnant, and that they should get the same accommodations as Joe, who sits next to them.”

One central question in Trischler’s case — whether an employer can deny accommodations to pregnant workers while providing them to workers injured on the job — is at the heart of another case, Young v. UPS, that the Supreme Court recently agreed to hear.

Peggy Young, a former UPS driver in Landover, Md., sued UPS in federal court. She argues that the company refused to honor her midwife’s note recommending that she not lift more than 20 pounds, even though UPS routinely gave such modifications to workers with non-work-related injuries who were disabled.

Though she wanted to work light duty or continue driving her route while observing the lifting restriction, Young says in her brief that supervisors told her she was “too much of a liability” to keep on the job while pregnant.

UPS argues that its policies are “pregnancy neutral.”

The EEOC recently issued guidelines clarifying that employers that make adjustments for workers injured on the job must also grant reasonable accommodations to pregnant workers who need them.

One complicating factor in determining what’s safe for pregnant workers is that the medical literature is inconclusive.

So, erring on the side of caution, doctors have tended to prescribe broad restrictions for pregnant workers — limiting heavy lifting or requiring light duty, reduced work hours or bedrest — said Rebecca Jackson, chief of obstetrics and gynecology at San Francisco General Hospital and a member of a group at the Center for Work Life Law at the University of California Hastings College of the Law studying accommodations for pregnant workers.

Indeed, doctors put an estimated one in five pregnant women on bedrest or suggest that they curtail their activities, even though new studies are finding that bed­rest can lead to other problems, such as muscle atrophy and blood clots.

“There’s a lot of pressure on doctors to recommend work restrictions: The desire to have a healthy baby is incredibly strong and the consequences of an unhealthy pregnancy are devastating,” Jackson said. “In the face of not understanding much of what causes things like preterm birth, we are left with very little to offer women to prevent it.”

But new evidence is emerging that suggests that all but the most physically demanding jobs are safe for most healthy pregnant workers.

The National Institute for Occupational Safety and Health in a recent report recommended weight limits for healthy pregnant women that, except for advising against lifting from the floor and overhead, are compatible with guidelines for the general population.

Other studies have found a only a small or inconclusive risk for preterm or low weight births if pregnant workers stand for more than three hours on the job. A recent Danish study found an increased risk for preterm birth for a pregnant worker lifting at least 44 pounds 20 or more times a day.

Sometimes, Jackson said, the notes that doctors write to help their pregnant patients continue working end up getting them fired.

In recent years, a Wal-Mart sales associate was fired for insubordination for carrying around a water bottle, as her doctor advised to prevent a pregnancy-­related bladder infection. An activities director at a nursing home and an Old Navy stock supervisor were fired after their employers refused doctors’ requests that they avoid standing on ladders or lifting heavy objects.Their employers contended in court filings that they were fired for other reasons.

EEOC records show and advocates say pregnancy discrimination tends to hit women in low-wage and physically demanding jobs as well as women in professions such as law enforcement that have traditionally been dominated by men. Women make up 11 percent of all police officers, according to the most recent FBI statistics.

“I’ve had situations where a police department refused to give a very pregnant woman a bulletproof vest that would fit her, even though they gave them to guys with a gut,” said Joan Williams, a University of California law professor who tracks pregnancy discrimination cases.

As for that pregnant Kentucky police officer, Trischler is preparing to move back in with family and out of the apartment she shares with her 1-year-old once her income runs out. Her boyfriend works for another police department and lives 90 minutes away.

Her supervisors told her her health insurance will cut off once her leave becomes unpaid, and she worries how she’ll pay the hospital bill when she delivers in October. Her claim for short-term disability benefits was recently denied. And because she will have used up all her paid time off and her 12 weeks of unpaid leave covered by the Family Medical Leave Act, she won’t have any time to recover after the birth. “When I’m cleared to go back to work,” she said, “I’ll go back to work.”

Is Obesity a Disability?

It can be.

The Centers for Disease Control (CDC) outline that 35.7% of U.S. adults are considered obese.  The CDC defines obesity as a number 30 or higher on a BMI index.   In June of last year, the American Medical Association officially recognized obesity as a disease.

Before the passage of the Americans with Disabilities Amendments Act in 2008 (ADAAA), obesity was generally not considered a disability.  Since then, with the interpretation of what constitutes a disability under the law, courts have found obesity to be a disability.

In EEOC v. Resources for Human Development, Inc., 827 F. Supp. 2d 688 (E.D. La.  Dec. 2011), the EEOC brought suit on behalf of Lisa Harrison, alleging that her former employer, Resources for Human Development (RHD) regarded her as disabled when it fired her.

Harrison worked as a Prevention/Intervention Specialist overseeing a daycare program for the children of mothers staying at RHD.  At the time she was hired, she weighed over 400 pounds.  RHD terminated Harrison’s employment eight years later, claiming that her weight severely impaired her job performance.  At the time of her termination, Harrison weighed 527 pounds.

Harrison claimed RHD fired her because it “regarded” her as disabled.  Harrison also claimed that RHD failed to make reasonable accommodations (the case does not elaborate as to what accommodations Harrison requested that were not made.).

According to the EEOC, Harrison received “excellent” ratings in her performance evaluations. Harrison died two years after her termination.  The death certificate stated it was as a result of “morbid obesity.”

The Court found that Harrison was a qualified individual with a disability.  Significantly, the Court found that obesity – in and of itself – was an impairment under the ADAAA.  

In another case brought by the EEOC, EEOC v. BAE Systems Tactical Vehicle Systems, LP, Civil Action No.:11-cv-3497 (S.D. Tex.), the EEOC alleged that BAE fired Ronald Kratz because he was morbidly obese.  For seven years, Kratz worked as a materials handler.  Kratz weighed 680 pounds.  BAE alleged he could not do his job because of his weight.  Kratz disputed his could not perform his job but asked if there was another job he could transfer to.  BAE denied his transfer request and fired him.  The case settled without a court decision.