January 29, 2010
Doorey In Defense of Transnational Domestic Labor Regulation
David Doorey (York Univ. (Canada)) has posted on SSRN (and finally spelled labo(u) right!) his new article: In Defense of Transnational Domestic Labor Regulation.
Here is abstract:
“Transnational domestic labor regulation” (TDLR) is unilateral regulation introduced by a national government that is designed to influence labor practices in foreign jurisdictions. Many governments already use a variety of measures to try and influence foreign labor practices. TDLR has the potential to empower foreign workers and influence the balance of power in foreign industrial relations system in ways that might lead to improvements in labor conditions over time.
Particularly interesting is the potential for TDLR to harness or steer the many private sources of labor practice governance already active in shaping labor conditions within global supply chains. However, whether governments should be trying to influence foreign labor practices at all is a controversial question. Does such a strategy not amount to unwarranted interference in the sovereign right of the foreign governments to regulate labor conditions within their own borders? Is this not just another form of Northern protectionism designed to undermine the comparative advantage of developing countries?
This article explores the arguments both for and against a unilateral legislative strategy that aims to improve working conditions in foreign countries. While, ultimately, the author is supportive of the strategy, he concludes that the design of the model must incorporate the legitimate warnings in many of the criticisms of the strategy.
I have not had the chance to read the paper yet, but I do think this is a very important area of international labor law to explore. Indeed, any initiative that potentially expands the labor rights of workers in different countries (without inadvertently causing job loss) is something to give serious attention to.
FMLA Insights Podcast: When Does Additional Leave Beyond FMLA Need to be Granted?Jeff Nowak of Franczek Radelet in Chicago has brought to our attention a new post on a recurring FMLA issue.
In the January FMLA Insights podcast, one of the most common inquiries they receive from their clients is how they should handle a situation where an employee has exhausted 12 weeks of FMLA leave and now seeks additional leave (or where his/her return date is still uncertain).
In light of a broadened ADA as well as recent aggressive initiatives by the EEOC in this area of the law, Jeff's firm advises employers to individually assess the employee's need for leave and any return to work issues before deciding to terminate employment. In the podcast, they offer practical tips on how to handle these situations.Jeff also points out that with the turn of a New Year, it is a good time to update your FMLA policy as to the October 2009 FMLA military leave amendments that went into effect this past fall.
SuperFreakonomics Book Club on MBA Gender Wage Gap
The Freakonomics blog at the New York Times has an interesting Q and A with Claudia Golden and Lawrence Katz, two Harvard labor economists, about their gender wage gap studies: Dynamics of the Gender Gap for Young Professionals in the Financial and Corporate Sectors (with Marianne Bertrand) and Transitions: Career and Family Life Cycles of the Educational Elite. Their data covered sixteen years of MBA graduates from the University of Chicago, and they found that much of the gender wage gap, although not all, could be explained by women disproportionately taking time out of work and reducing their hours (although they still worked long hours compared to non-MBAs) as compared to men. The time out and reduced hours depended, though, on spousal income.
They're interesting studies, and the Q & A is good, too.
More on Faithless Servants
In Astra USA, Inc. v. Bildman, 914 N.E.2d 36 (Mass. 2009), the Supreme Judicial Court applied New York law to require a former chief executive officer to disgorge the compensation he had been paid during the period of his disloyalty. As I mentioned, Bildman was found to have conducted a pattern of sexual harassment and then covered up his conduct -- not only from a business magazine but also from the corporate parent. His derelictions included not just harassment but paying victims from corporate funds and also charging personal expenses to the corporation.
The SJC applied New York’s “faithless servant” rule, a doctrine that authorizes the forfeiture of the employee’s compensation when his breach of fiduciary duty is sufficiently severe. The doctrine allows the employer to recover not its damages, which may be hard to prove, but rather what it paid the employee during the period of his faithlessness. Strong medicine indeed.
Forfeiture is an equitable remedy, and the trial judge considered whether to award this relief after the jury verdict finding Bildman had not only sexually harassed Astra employees and retaliated against those who had complained but also had failed to disclose material information to the corporation regarding his activities and had made converted Astra funds on a number of occasions. Nevertheless, the trial court refused to order forfeiture, an action that the Supreme Judicial Court reversed on de novo review.
It held that Bildman must “forfeit all of his salary and bonuses from Astra for the period of disloyalty and that the judge was without authority to rule otherwise.” This is true even if the faithless servant “otherwise performed valuable services for his principal.” This renders the doctrine a one-way restitution claim since the employee can’t seek to recover in quantum meruit the reasonable value of the services he did render.
The SJC explicit rejected three of the trial judge’s reasons for denying forfeiture, finding them all ill-based in New York law. Thus, the faithless servant doctrine reached not just compensation that had not yet been paid but also required disgorgement of compensation already paid. Second, the doctrine was not limited, as the trial judge had indicated, to lower-level employees. And, third, viewed as a whole, it would be fairer to use Massachusetts law, which uses a “task-by-task” approach to forfeiture. Substituting Massachusetts law on remedy when New York law determined the claim “would interfere with New York’s legitimate interest in regulating a corporation’s internal affairs.”
New York's rule seems unusual but not unique -- there are a scattering of other jurisdictions that seem to apply some version of it. While the trial court believed it applied to only lower level employees (which seems perverse), the SJC seemed to think it reached every faithless servant, which means that rank-and-file employees could theoretically be subject to it.
While it's hard to have much sympathy for Mr. Bildman in the circumstances, the notion that an employer can recover whatever it paid the employee without any offset for the value of the work performed is pretty remarkable and, if applied generally, pretty dangerous.
January 28, 2010
Becker Hearing Set for Feb. 2
Mark your calendars, the hearing on Craig Becker's nomination to the NLRB that Sen. McCain was asking for is now coming to pass. The hearing is scheduled for next Tuesday, February 2 at 4:00pm and is sure to have some fireworks. We'll see if McCain drops his hold after being able to say his peace in a hearing, or whether the battle will continue.
It looks like we'll find out what McCain will do sooner rather than late, as a vote has been scheduled on Becker's nomination following the hearing.
Hat Tip: Justin Keith & Patrick Kavanagh
Kleisinger and Bales on the Two-Member Board
Kelli Kleisinger (Northern Kentucky) and our own Rick Bales (Northern Kentucky), has just posted on SSRN their article, "The Validity of the Two-Member NLRB," which will appear in the Seton Hall Circuit Review. The abstract:
The National Labor Relations Act is supposed to consist of five members. The terms of three members have expired and those members have not been replaced. The two remaining members have continued to issue decisions, notwithstanding statutory language requiring that the Board have, “at all times,” a quorum of three.
One federal circuit has held that the hundreds of decisions since issued by the two-member Board are invalid. Five circuits have ruled that the decisions are valid. The Supreme Court has granted certiorari. We believe that the Court should – and will – hold that the two-member Board decisions are contrary to the express language of the statute.
Needless to say, with the pending Supreme Court arguments in New Process, this is a timely issue.
Check it out!
$44M DFR Suit
The National Law Journal reports on a $44 million settlement in a DFR suit brought against the Airline Pilots Association in connection with a pension agreement negotiated with United Airlines. Plaintiffs were "2,200 senior United pilots who claimed in a December 2006 federal lawsuit filed in Chicago that they were shortchanged by their union in a distribution of pension benefits related to the airline's bankruptcy." Dennis Nolan comments: "I've never seen a DFR judgment anywhere near that size. This will cause shivers in unions that negotiate pension changes." Hat tip to Dennis.
$30 Million Race Discrimination Suit Filed against Howrey
The Blog of the Legal Times has a story about a lawsuit filed yesterday by a former associate at Howrey, a large global law firm. The associate, a black woman, was heavily recruited away from another firm, and sent to Howrey's office in Brussels. From the BLT story,
At some point after moving to Brussels, Menns says in her complaint, she began being removed from projects despite receiving compliments on her work from several partners. She says her workplace was shifted to a different floor from that of other lawyers. When she reached out to the office’s managing partner, Trevor Soames, the complaint alleges, Menns was told “that because she was an ‘impressive woman’ Ms. Menns made Howrey’s white employees feel uncomfortable.” The complaint alleges that Soames also told her that because she was the first black associate to work in the office, the office staff’s treatment of her might be influenced by the fact that “they had never before been forced to be in a ‘subordinate position’ to a black person.”
The complaint goes on to allege that the situation only got worse when she reached out to firm leaders, including the Washington-based diversity committee and CEO Robert Ruyak. In a June 2, 2009, meeting, a day after Menns sent an e-mail to Ruyak and eight members of the diversity committee outlining the allegedly discriminatory treatment, Menns was fired.
Yikes. The complaint seeks relief under the DC Human Rights Act and tort theories of intentional and negligent infliction of emotional distress. Not great for a firm that ranked number 13 among the top 200 grossing law firms in the US in the Minority Law Journal's Diversity Scorecard last year.
Garcetti, Academic Freedom, and Public School Teacher's Right to Free Speech
In Weintraub v. Board of Education of the City of New York, No. 07-2376 (2d Cir. Jan. 27, 2010), the Second Circuit, in a 2-1 decision, has delivered a body blow to the First Amendment speech rights of public school teachers.
The case concerns a 5th grade school teacher who was dealing with a disruptive student throwing books at him on multiple occasions. When the school administrator refused to take disciplinary action against the student, the teacher filed a grievance with his union. The school allegedly responded by retaliating against the teacher and eventually, firing him. (BTW, all of this happened from 1998-2000 and the 2nd Cir decision comes out in 2010; something about justice delay is justice denied keeps popping into my head).
The majority decision, written by Judge Walker, recites the holding of Garcetti (U.S. 2006) (the bane of my existence) that public employee speech pursuant to an employee official duties receives NO First Amendment protection. In Weintraub, the "speech" being examined was the grievance filed by the teacher with his union.
The Court held that the employee's grievance was "pursuant to" his official duties because "it was 'part and parcel of his concerns' about his ability to 'properly execute his duties,' as a public school teacher -- namely to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning."
Now, Garcetti is an awful decision that sets all sorts of bad incentives as far as keeping the larger community aware of what is going on inside one our public workplaces. But this decision is even more troubling because it reaches into area that Garcetti expressly decided not to comment on: the academic freedom rights of public teachers. Although this case does not ostensibly deal with the academic freedom of the teacher, it is not much of a stretch to see how the majority's reasoning in Weintraub could be used to encroach on a public school teacher's ability to run their classroom and what and how to teach.
I will conclude by quoting a little from Judge Calabresi's dissenting opinion. In part, he writes:
As I read the majority opinion, it holds that a public employee's speech is "pursuant to official duties" and accordingly unprotected when it both (a) is "in furtherance of" the employee's "core duties," and (b) "ha[s] no relevant analogue to citizen speec . . . . To be sure, Garcetti contains some language that can be read along these lines. But Garcetti leaves open the definition of "pursuant to official duties," and I do not think that the majority's two requirements, either separately or in combination, provide the right doctrinal framework for analyzing that question.
The majority's first prong, which looks to whether speech is "in furtherance of" an employee's "core duties," seems to me too broad. The majority's discussion could be read to imply that—assuming the second prong of the majority's test is also satisfied—classroom teachers receive no First Amendment protection anytime they speak on matters that implicate anything that is "an indispensable prerequisite to effective teaching and classroom learning." But the prerequisites for effective learning are broad and contentious; everything from a healthy diet to a two-parent family has been suggested to be necessary for effective classroom learning, and hence speech on a wide variety of topics might all too readily be viewed as "in furtherance of" the core duty of encouraging effective teaching and learning. The line-drawing this entails is necessarily subjective and provides little certainty to the employers and employees who must structure their behavior around our law. Is speech regarding, say, a teacher's concerns about a student's misconduct outside the classroom "in furtherance of" the teacher's core duty of maintaining class discipline? What of a teacher who discovers that a student is the victim of domestic abuse, which is affecting the student's classroom performance, and brings his concerns to the administration's attention? The majority's elaboration of Garcetti provides no administrable standards for analyzing such cases, and as such poorly serves not only the courts and juries that will hear future cases but also the parties who look to us for legal guidance.
Interestingly, neither Judge Calabresi nor the majority raise the academic freedom concerns that trouble me. In Garcetti, the majority held in this regard: "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."
I strongly believe, and Garcetti does not hold to the contrary, that the customary employee-speech jurisprudence does not, and should not, apply to cases involving issues related to academic scholarship or classroom instruction. This case's facts, and certainly its holding, implicate those concerns and I would argue that a balancing test under Pickering is more appropriate when there is a conflict between a public employer's right to maintain an efficient workplace and a public school teacher's right to speak freely on issues related to their academic freedom.
Of Faithless Servants and Efficient Breaches
From the man bites dog perspective, I always perk up a little when an employer sues an employee. This happens relatively rarely (and most often as a counterclaim when the employer is trying to up the ante for settlement purposes). The obvious reason is that most employees are judgment-proof and, in an at-will world, discharge is a better remedy for employee shortcomings than a lawsuit. The big exceptions, of course, are when the employee is highly paid and when, in the noncompete or trade secret setting, the new employer can be joined, say on a theory of intentional interference with contractual relations.
But even where the defendant has a sufficiently deep pocket to warrant suit, the employer faces other difficulties. That old chestnut, Handicapped Children's Education Bd. v. Lukaszewski, 332 N.W.2d 774 (Wis. 1983), tells us that the normal remedy for breach of a term contract is the difference between the contractual compensation and the amount needed to hire a replacement worker. While consequential damages are presumably also recoverable, they are often hard to prove.
For that reason, I found more than a little interesting two relatively recent cases where the employer sued former employees. They fit the usual scenario in one respect – high level former employee (thus presumably good for the judgment) or co-defendant new employer. But the plaintiffs in both cases sought not normal compensatory damages but rather some variety of restitution. In one case successfully, in the other not.
The successful case was Astra USA, Inc. v. Bildman, 914 N.E.2d 36 (Mass. 2009), where the employer sued its former CEO for, inter alia, breach of fiduciary duty seeking the disgorgement of the compensation it had paid him over several years. The Massachusetts court, applying New York’s “faithless servant” doctrine, granted that relief. The unsuccessful case, TruGreen Cos., L.L.C. v. Mower Brothers, 199 P.3d 929 (2008), was out of Utah where plaintiff, a landscaping company, sued its former employees and their new employer for breach of noncompete agreements. It sought recovery not for its lost contracts but rather for the profits earned by the new employer. The court said no.
Together, the cases frame the question of when restitutionary recovery can be used in the employment context as an alternative to the traditional compensatory damage remedy. In this and subsequent posts, I'll describe the two cases and reflect on the potential implications for employment law.
Astra USA involved a corporate executive who “used Astra as his personal checkbook and sexual fiefdom.” In addition to the rampant misconduct, the case featured an investigation by Business Week magazine and Bildman’s orchestration of a massive coverup, first from the media and then from the corporate parent. The case is an employment law prof's delight, with a host of claims and counterclaims, including dueling claims of breach of the executive’s employment contract, Astra's claim that Bildman breached his fiduciary duty, and Bildman's counterclaim for defamation. Plus, the case involved the law of two states (Massachusetts for breach of contract and New York for breach of fiduciary duty).
My concern, obviously, is with the fiduciary duty claim, and the unusual remedy the Supreme Judicial Court granted. Stay tuned for more on this next time.
Howard Zinn, Noted Historian and Labor Rights Activist, Has Died
I am sorry to have bring to you news of the eminent historian Howard Zinn's death. Although a historian of the first degree, he was also known for his support of labor unions and civil rights. Here is a taste of his obituary from the Boston Globe:
Howard Zinn, the Boston University historian and political activist who was an early opponent of US involvement in Vietnam and whose books, such as "A People's History of the United States," inspired young and old to rethink the way textbooks present the American experience, died today in Santa Monica, Calif, where he was traveling. He was 87 . . . .
For Dr. Zinn, activism was a natural extension of the revisionist brand of history he taught. "A People’s History of the United States" (1980), his best-known book, had for its heroes not the Founding Fathers -- many of them slaveholders and deeply attached to the status quo, as Dr. Zinn was quick to point out -- but rather the farmers of Shays' Rebellion and union organizers of the 1930s . . . .
Dr. Zinn was a cochairman of the strike committee when BU professors walked out in 1979. After the strike was settled, he and four colleagues were charged with violating their contract when they refused to cross a picket line of striking secretaries. The charges against "the BU Five" were soon dropped.
In 1997, Dr. Zinn slipped into popular culture when his writing made a cameo appearance in the film "Good Will Hunting." The title character, played by Matt Damon, lauds "A People’s History" and urges Robin Williams’s character to read it. Damon, who co-wrote the script, was a neighbor of the Zinns growing up.
His brand of intellectual honest and sticking up for the "have-nots" of our society will certainly be missed. Comments about how Dr. Zinn impacted reader's lives are most welcome.
Cheating Low-Wage Workers
According to a new report by the National Employment Law Project, over half of New York City's low-wage workers are not getting the paychecks that they deserve. The report was based on a survey of low-wage workers, including some who were undocumented. The New York Times summarizes the findings:
The average worker in a low-wage job in the city lost out on $58 a week, or more than $3,000 a year, because she was not paid minimum wage or overtime, or because of some other violation of labor laws . . . . These workers, including laundry employees, home health-care aides, deliverymen and grocery baggers, would still earn less than $400 a week, on average, if they were being paid fairly, according to the report.
In all, the report estimated, more than 315,000 workers were denied some of their deserved pay, amounting to a loss of more than $18.4 million a week — nearly a billion dollars a year — to the workers, and therefore to the neighborhoods where they spend their paychecks or to the families to whom they send money. . . .
The project found that more than one-fifth of all low-wage workers in the city were paid less than the minimum wage, which was $7.15 an hour when the survey was conducted in 2008. But the incidence of that underpayment varied widely by industry: ranging from almost 53 percent of all workers in laundries and dry cleaners to just 2 percent of residential construction workers, the report showed.
Failure to pay overtime to employees who worked more than 40 hours a week was even more common. More than three-fourths of the workers surveyed had not been paid 1.5 times their regular wages for overtime hours, as the law requires, according to the report. About one-fourth of them were paid less than their regular hourly rate or not at all for those extra hours, the report said.
The authors estimated that there were more than 585,000 non-managerial workers in the city’s low-wage industries, which were defined as those whose median wage was less than $13.07 an hour – 85 percent of the city’s median wage.
The report also concluded that the state’s workers’ compensation system was “not functioning as intended.” Of the workers surveyed who had been seriously injured in the past three years, only about one-tenth of them had filed claims for workers’ compensation. Nearly half of them said they had been required to keep working despite their injuries, the report said.
NELP did note that the New York State Department of Labor is being more aggressive about going after employers that commit wage violations, so there's hope that the problem will lessen some. Also, I find the disparity in industries interesting and wonder whether a higher rate of unionism in the residential construction industry is a partial explanation to its much lower rate of wage theft.
January 27, 2010
Law Professors Supporting Becker Nominations
Coming on the heels of the White House's recent renomination of Craig Becker to the NLRB, numerous labor and employment law professors have sent a letter to Senators Reid and McConnell supporting Becker's nomination. The letter emphasizes Becker's labor law expertise and argues that many criticisms of his past work has been misleading and inaccurate.
To see the full letter, you can get it at the following link: Download Professors' letter.
Hat Tip: Lise Gelernter & Patrick Kavanagh
Unions Kill EFCA
Jeff posted yesterday on a poll by the AFL-CIO indicating that 49% of union households in Massachusetts voted for Republican Scott Brown in the state's senate race. Politico, citing the same poll, points out that by helping to elect a Republican and thereby depriving the Democrats of a filibuster-proof majority, Massachusetts union members likely have put the "last nail in the coffin" that is burying EFCA. About the best the Democrats can hope for on the EFCA front now is a watered-down compromise bill -- perhaps something that just increases the penalties for unfair labor practices.
Hat tip: Dennis Nolan.
January 26, 2010
Labor College President To Step Down
A mere week following the announcement that the National Labor College was teaming up with for-profit companies, its president--William Scheuerman--has decided to leave. According to Inside Higher Ed, the move was unexpected, which is fueling speculation that opposition to the joint venture forced him out. Despite objections from some in the labor movement and concerns about the lack of tenure for faculty involved with the venture, Scheuerman insists that he's leaving because he'd accomplished what we wanted at the college.
Following the Supreme Court's recent campaign spending case, union political action will be even more prevalent than before. However, a Wall Street Journal story on Scott Brown's victory in Massachusetts is a reminder than union members are not all of the same mind. According to a poll by the AFL-CIO, 49% of union households in Massachusetts voted for Brown, the Republican candidate, while 46% voted for the Democrat, Martha Coakly. Although this election had a lot of unique features and doesn't mean that most union voters will go Republican in the mid-term elections, it is a sign that Democrats may not be able to rely on union votes as much as they have in the past. That said, most of the union money and get-out-the-vote efforts will still be focused on Democrats, which will remain very important to Democrats--especially given the added leeway that corporation now also enjoy.-JH
Sachs on Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing
Ben Sachs (Harvard) has had posted online his new article in the Harvard Law Review: Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing.
Here is the abstract:
The proposed Employee Free Choice Act (EFCA) has led to fierce debate over how best to ensure employees a choice on the question of unionization. The debate goes to the core of our federal system of labor law. Each of the potential legislative designs under consideration — including both “card check” and “rapid elections” — aims to enhance employee choice by minimizing or eliminating managerial involvement in the unionization process. The central question raised by EFCA, therefore, is whether enabling employees to limit or avoid managerial intervention in union campaigns is an appropriate goal for federal law.
This Article answers this foundational question in the affirmative. It reaches this conclusion by conceptualizing federal labor law in terms of legal default rules, drawing in particular on the preference-eliciting default theory of statutory interpretation and the reversible default theory from corporate law. Doing so leads to the argument that card check, rapid elections, and similar mechanisms are best understood as “asymmetry-correcting altering rules” — means of mitigating the impediments that block departure from the nonunion default. Understanding EFCA in this way also requires that we ask how such an altering rule should be constructed. This Article addresses this institutional design question by arguing that card check’s open decisionmaking process is flawed and that rapid elections, while an improvement over the status quo, are an insufficient method of mitigating the relevant impediments to employee choice. Accordingly, this Article offers two new designs — alternatives to both card check and rapid elections — that would accomplish the legitimate function of minimizing managerial intervention while at the same time preserving secrecy in decisionmaking.
Very timely and hopefully will help to put the EFCA debate back front and center again. One thought I have is that one of Ben's more contestable points is that managerial intimidation is more of a problem than union intimidation when it comes to employee choice re: unions.
Now, I certainly am one who believes that managerial intimidation is more of a problem in most workplaces, but I hope Ben considers the view of many management-side types who are more worried about union intimidation of workers (also a problem, albeit not the primary one).
January 25, 2010
ABA Technology in the Practice & Workplace Committee Midyear Meeting
Organizers of the 2010 Technology in the Practice & Workplace Committee Midyear Meeting tell us that the meeting has been scheduled for April 28-30 at New York University School of Law in New York, New York. TThe event is being co-sponsored by the Center for Labor and Employment Law at New York University School of Law and the New York State Bar Association Labor and Employment Section. The schedule is as follows:
The meeting will begin on Wednesday, April 28 with an E-Discovery Workshop in the afternoon followed by a Welcome Reception from 6:30 –8:00 p.m. General sessions will be on Thursday from 8:30 a.m. – 5:00 p.m. and Friday from 8:15 a.m. – 1:00 p.m. A reception and dinner party is scheduled for Thursday, April 29. We are pleased to present the full Program Agenda, which includes the following topics:
I. MODULE ONE - VIRTUAL AND PORTABLE WORKSPACES
- Lost in (Virtual) Space: Virtual and Portable Workspaces and the Workplace
- Cloud Computing
- Virtual and Portable Workspaces and the Practice of Law
- Traditional Labor Law and Virtual Workspaces
II. MODULE TWO - E-DISCOVERY AND TECHNOLOGY-DERIVED EVIDENCE – THE NEXT GENERATION
- It’s not just email anymore: e-discovery and technology–derived evidence and the virtual workplace
- International e-discovery
- State and Administrative E-discovery and Technology practice.
Eleventh Circuit Recognizes Private Right of Action for Improper Medical Inquiry under ADA
The Eleventh Circuit reversed a grant of summary judgment in favor of an employer earlier this month and joined the Second, Seventh, Eighth, Ninth, and Tenth Circuits in holding that the ADA creates a private cause of action to sue an employer for damages related to a prohibited medical inquiry. This cause of action does not depend on whether the plaintiff is a qualified individual with a disability, as that was defined either before the recent ADA Amendments or currently.
The case is Harrison v. Benchmark Electronics Huntsville, Inc, and stems from a decision not to hire a temp worker permanently. The employer frequently hired temp workers as permanent workers, and asked that they undergo drug testing and a background check. Harrison's supervisor submitted Harrison's application and a requisition for a position for him, along with requisitions for two other positions. The supervisor indicated that Harrison was the only person that he was interested in employing. Harrison passed the background check, and the drug test showed the presence of barbiturates, which Harrison takes to control epilepsy.
Somehow, the supervisor found out about the positive drug test and told Harrison about it. Harrison said he had a prescription, and the supervisor asked him to get it. Then the supervisor called a medical review officer who would decide whether the results of the test were acceptable, and handed the phone to Harrison. The supervisor stayed in the room while the medical review officer asked Harrison about the medication and his disability.
The medical review officer cleared Harrison to be hired, and the supervisor was told this and given clearance to hire him, but the supervisor asked that an offer letter not be prepared. He also asked the temp agency not to send Harrison back. The supervisor subsequently offered three separate reasons that Harrison wasn't hired.
The court first held that the ADA contained a private right of action for damages for improper medical inquiries, and that the cause of action did not depend on a person's disability status. The EEOC had found that Harrison was not disabled, presumably following Sutton, because his epilepsy was controlled by medication.
Given the availability of the cause of action, the court found that Harrison had enough evidence to get to a jury. A jury could find that the discussion that the supervisor was privy too went beyond the narrow area that the ADA allows inquiry into and that this was an inappropriate medical inquiry about Harrison's disability. A reasonable jury could also find that the reason's offered by the supervisor were not the real reasons for his decision--there were both problems with the employer's evidence and affirmative evidence provided by Harrison that cast the supervisor's assertions in doubt. And finally, there was evidence of damages to Harrison--he wasn't hired. Accordingly the court reversed and remanded the case to the trial court.
The vitality of the cause of action for an improper medical inquiry is likely to be less as we get farther away from the effective date of the ADA amendments. Here, the plaintiff would not have needed to use that theory under current law because his epilepsy would be considered a disability, and action taken based on it or the treatment for it would likely violate the ADA. It will still have vitality, though where an employer requires an employee to undergo a procedure or take some kind of test that doesn't test job skills and that they wouldn't have to otherwise.
What to do if you're about to get fired.