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STATE AND FEDERAL E-VERIFY RULES OFTEN NOT ENFORCED

The federal E-Verify system was started in the 1990s as a voluntary program, but became mandatory for federal contractors in 2009.  Even among employers signing up for E-Verify, however, collected data indicates that many employers sign up for E-Verify but do not use it, at least not in all cases.  For example, it has been reported that Georgia has the most enrolled businesses, but also has the lowest percentage of enrollees that actually use E-Verify in the hiring process, around 23%.

Later, many states began enacting law requiring their own contractors to participate in E-Verify, particularly in the Southeast, and many states require certain private employers to enroll in E-Verify regardless of their government contracting status.  For example, seven states in the Southeast have such laws applicable to private employers of a certain size, but only one of these states, South Carolina, has ever conducted an audit, and only one other state, Tennessee, has ever assessed a fine.  None of them has ever cancelled a single business license.

While many bills have been introduced in Congress to make the national federal E-Verify system mandatory, such bills have never passed either House of Congress.  Nevertheless, voluntary use of E-Verify by private employers appears to be expanding, as employers fear immigration actions and feel that use of E-Verify provides additional legal support for their business practices.

MISSION AND PURPOSE NOT ONLY NECESSARY FOR COMPANY MISSION STATEMENTS

Larger employers today often have mission statements.  At the same time, in today’s tight labor market, anything that will improve hiring and retention is considered important.  One approach is to encourage employees to have a mission and purpose within the company.

Experts tell us that the more passion and purpose an employee brings to the job, the higher the performance level is.  One of the best ways to bring passion and purpose is to help employees feel that they are helping other people, that other people need them and depend on their contributions.  If an employer can create this attitude, the employee is happier on the job, more likely to stay, and more likely to do good work.  It also makes the performance of the job more pleasant for the employee, and brings the employee more energy.

While this is a challenge for employers, many have found ways to show employees they are needed, they are helping other people, and the company depends on their contributions.  The good news is that surveys found that this encouragement works in almost every industry or occupation. 

DEALING WITH AN EMPLOYEE WHO OTHER EMPLOYEES COMPLAIN ABOUT BEING A "NUT CASE"

Many companies have experienced situations in which employees complained of a co-worker they considered a "nut case."  A recent ruling from the Seventh Circuit Court of Appeals illustrates these situations and provides some guidance to employers.  Painter v. Illinois Department of Transportation, 2017 BL 435456 (C.A. 7, 12/6/17).

The case involved no less than five medical examinations directed by the employer.  The first was directed when employees complained about the behavior of the female employee, and an occupational-medicine specialist examined the employee and concluded that she could perform the essential functions of her job without posing a threat to herself or others.  He did note that she "displayed some hypomania" and "could be bipolar," so he recommended that she be re-evaluated later.  The plaintiff was transferred to a different division and used work time to keep a detailed log of her new co-workers conversations and other actions.  The new supervisor reacted by documenting his involvement in handling complaints about her behavior.  For example, a co-worker told the supervisor that she was fearful of the plaintiff and was making other arrangements for her car pool as they both left work at the same time.  The plaintiff was examined again by a psychiatrist, who concluded that plaintiff was psychiatrically fit for duty, but the statements from her co-workers and supervisors caused him to suspect she might suffer from a personality disorder.

The plaintiff again returned to work and complaints from co-workers started anew.  The supervisor gathered more written statements about her behavior and forwarded them for review.  Plaintiff was given a written reprimand for being argumentative and for speaking to co-workers in an unprofessional tone.  The company requested another examination by the psychiatrist. 

A few days later, plaintiff complained that a clock that had stopped was a conspiracy against her.  When told the battery was dead, plaintiff responded, "Something’s dead, alright - however, I prefer to be a lady and not say what I think is dead."  The union steward interpreted this statement as a death threat and demanded that she cease communicating with him. 

Plaintiff was referred for still another examination by the psychiatrist, making it the fifth examination: two with the occupational medicine specialist, one with a psychologist obtained by Painter, and two with the psychiatrists retained by the company.  This time, the psychiatrist declared Painter unfit for duty because of her "paranoid thinking and the highly disruptive behavior which results from her paranoia."

The case only dealt with two of the medical examinations.  The plaintiff brought other claims in her complaint but later abandoned them, including discrimination on the basis of a real or perceived mental impairment and retaliation for filing a charge of discrimination.  The district court granted summary judgment to the employer, reasoning that the employer’s action was based on legitimate concerns and its employees reasonably responded to the situation which they encountered.

The findings were upheld by the 7th Circuit, and their discussion of the issues is interesting.  First, the court discussed EEOC guidance, which indicates that a medical examination is job related and consistent with business necessity if the employer has a reasonable belief based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition.  Preventing employees from endangering their co-workers is a business necessity.  Employers need not retain workers who, because of a disability, might harm someone.  The court noted that the psychiatrist had reviewed complaints from co-workers, including allegations that she snapped and screamed at them, gave blank stares and intimidating looks, grunted, constantly mumbled to herself, repeatedly banged drawers in her office, and had mood swings.  Her co-workers also feared that she would "go postal" or "blow up at any time."  After her transfer, plaintiff’s new co-workers complained that she glared and growled at them; kept a log on an hourly basis of what was going on at work; was rude, angry, abrasive, aggressive, threatening, and had mood swings.  She even accused others of hostile body language.

According to the psychiatrist, the incidents contributed to his conclusion that Painter was paranoid in the psychiatric sense, which is a risk factor for violence.  The court stated that inquiries, even multiple inquiries, concerning a worker’s psychiatric health may be permissible if they reflect concern for the safety of other employees and the public at large.  Here, the court concluded that the medical examinations were based on the employer’s reasonable concern for the safety of its employees, and dismissed the claims on summary judgment.

Editor’s Note:  While the Painter case follows established law, its discussion of the issues and the unique fact pattern is informative of actions the employer may take.  The court rejected the claim that the employer had engaged in "doctor shopping" by subjecting the plaintiff to five medical exams.  It is interesting to note that the plaintiff had received at least two acts of discipline for her behavior in the workplace, and the discipline was not challenged in this case.  Perhaps the employer could have gone down the road of progressive discipline based on behavior.  The employer instead adopted a very conservative approach in returning the employee to work and conducting additional medical exams where circumstances continued to raise safety concerns.  The supervisor did a good job of documenting the various complaints reported by co-workers, which furnished grounds for upholding the employer’s repeated medical examinations.  The court in its ruling gives employers some leeway in fitness for duty exams where complaints from workers indicate that an employee might harm someone, even if the concern is because of a disability.  The EEOC in December 2016 posted to its website a publication on the job rights of employees with mental health conditions, along with a related fact sheet for mental-health-care providers.  These EEOC publications detail the type of documentation a medical provider can furnish a company in evaluating a worker’s condition and address the issues of mental health conditions under the ADA.  Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights, EEOL (Dec. 12, 2016).

NLRB COUNSEL SUPPORTS EMPLOYER'S RIGHT TO PROHIBIT UNION ORGANIZING EMAILS ON COMPANY EQUIPMENT

The National Labor Relations Board has ruled on many occasions in the past that employees have no statutory right to use an employer's equipment or media as long as the employer's restrictions are non-discriminatory.  Thus, an employer may place non-discriminatory restrictions on the use of its equipment for business purposes, such as bulletin boards, copying machines and the like.  During the Obama Administration, the NLRB issued a ruling in which it overturned its previous doctrine, with two members dissenting, and ruled that employees having a right of access to the employer's email system in the course of their work also have the right to use the email system to engage in union and other protected communications on non-working time.  In addition to the negative effect on productivity, employers argued that this reversal of a long-standing policy was wrong.

In a brief filed in a pending NLRB case by the NLRB General Counsel in September, the NLRB's top prosecutor argued that the NLRB should abandon its Obama-era rule that allows workers to use their employer's email systems to discuss unionization.  The General Counsel wrote that employers should be able to restrict email use in a non-discriminatory way.  It stated that the NLRB is a government entity and should not be able to force employers to pay for speech on their email systems that they might oppose, raising First Amendment concerns.  The NLRB General Counsel is thus supporting the long-standing view of business groups that the Obama-era decision wrongly took away employer control over their own email systems.  In a related development, the NLRB has invited public input on a similar case involving email rules in a case called Caesars Entertainment Corp.

NEW "JOINT EMPLOYER" FEDERAL RULE PROPOSED

The National Labor Relations Board (NLRB) has proposed a new federal rule to solve the controversial issue of whether one employer is considered a "joint employer" of another's employees.  Under the proposed rule, an employer may be found to be a joint employer of another employer's employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine.  Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint employer relationship.

The proposed rule reflects the NLRB majority's view that the Labor Act's intent is best supported by a joint employer doctrine that does not draw third parties, who have not played an active role in deciding wages, benefits or other essential terms and conditions of employment, into a collective-bargaining relationship for another employer's employees.  The "poster child" for the issues is considered by many to be McDonald's, who is fighting a case in which a complaint alleges it has enough control of the franchisees and their workers to share legal responsibility in an unfair labor practice case.  The concept applies to potentially a large portion of American employers, including those in the GIG economy, and those that rely on contracting or subcontracting out some of their work. 

The bottom line is that the proposed new rule would require companies to exercise substantial, "direct and immediate" control over the most important terms of a worker's job, like discipline or the power to hire and fire, to be considered joint employers.  During the Obama Administration the then-NLRB majority introduced a new standard, under which a business could be considered a joint employer even if its control over another business's employees was only indirect and limited. 

Public comments are invited on all aspects of the proposed rule and must be submitted within sixty (60) days of the notice's publication in the Federal Register on September 14.  Comments may be submitted either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Deputy Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.  20570-0001.


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