Once an Accommodation, Always an Accommodation?

A parts clerk suffers a stroke. Following the stroke, the clerk returns to work without restrictions but still has difficulty moving his left side. The clerk, however, continues to receive rehab and all parties expect that his condition will improve. Based on that expectation, the clerk’s supervisors tell him that they will accommodate him as best they can as long as he can reasonably perform most of his job, which happens to include being able to lift 50 pounds. Over the next 15 months, the clerk has difficulty completing all of his tasks in a safe and timely manner, but his employer elects not to reprimand him in light of his full release and the expectation that he will continue to improve. The employee does not improve, though, and so the employer offers the clerk a job transfer. The employee accepts but fails to adjust to the new position, and the employer terminates his employment. The clerk then sues claiming that, because the employer accommodated him for 15 months without complaint, it was obligated to continue doing so.

The question is: Is he correct?

A federal district court in North Carolina recently tackled this question and—based on the specific facts of the case—answered it with a “no.”

In Moore v. Wal-Mart Stores East, LP, the court noted that, even after 15 months, the clerk was unable to perform the essential functions of his job with or without a reasonable accommodation. He could not, for example, lift more than 20 pounds or safely climb ladders on his own and could only do so with assistance from others, which the court noted was unreasonable because it effectively reallocated the job’s essential functions to others.

As for the clerk’s claim that the employer was obligated to continue providing the accommodation it had given him for 15 months, the court found that the employer was not required to maintain a diminished level of exertion indefinitely. Although the employer had accommodated the clerk by allowing him to resume working while only performing certain functions, there was no legal duty to create a “permanent light-duty position that does not otherwise exist.”

According to the court, it could not punish the employer by deeming it to have “conceded the reasonableness of so far-reaching an accommodation.” Otherwise, it would discourage employers “from doing precisely what was done here, which was to temporarily lessen the physical requirements of a job in hopes that the employee’s functional capacity would be restored.” That result, said the court, would clearly be at odds with the purpose of the Americans with Disabilities Act (ADA).

Second Circuit Weighs in on Social Media, Profanity, and the NLRA

One of the fundamental protections of the National Labor Relations Act is that employers may not discipline employees for engaging in concerted activities relating to the terms and conditions of their employment.  Whether an employee has engaged in statutorily protected activity, however, is not always clear – especially when the activity involves profane or obscene conduct that would seem to cross the line in any other context.

For example, the Second Circuit Court of Appeals just considered whether an employee lost the protection of the NLRA when he took to social media in an expletive-laden rant on the eve of a union election.  The employee in the case, Perez, had worked for thirteen years as a server for a catering company, Pier Sixty, which was undergoing a tense union-organizing campaign.  Two days before the election, Perez received some directions from his supervisor that he felt were delivered in a “harsh tone” and that he viewed as further evidence of the company’s continuing disrespect for employees. So, during a break, Perez commented about the incident on his Facebook page, saying: “Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”  After learning of the post, the company terminated Perez.

Perez filed a charge with the NLRB claiming that he was terminated for engaging in protected concerted activities and the NLRB ultimately agreed.   On a petition for review by Pier Sixty, the Second Circuit acknowledged that an employee may act in such an abusive manner that he or she loses the protection of the NLRA.  However, under a “totality of circumstances” test as applied by the NLRB in recent social media cases, the court found that the evidence supported the NLRB’s decision that Perez’s obscenity-laced post was not “so egregious as to exceed the Act’s protection.” Recognizing that social media has become a “key medium” for communication among coworkers, the court found that even though the Facebook post may have been visible to the whole world, the comments were not made in the immediate presence of customers or at a company event and were therefore distinguishable from other cases involving opprobrious “public outbursts.”  And, although Perez’s post was dominated by “vulgar attacks,” the subject matter of the post nonetheless referenced workplace concerns and was made in the context of a tense organizing campaign.  Also tilting the balance in favor of affirming the NLRB’s decision was the fact that the evidence demonstrated that profanity was common in the workplace and that Perez’s termination was the first time the company had disciplined an employee for profanity.

For employers, the lesson from this case is that context matters.  Even the Second Circuit noted that this case sat “at the outer-bounds of protected, union-related comments.”  Determining where those outer-bounds end, however, requires employers to consider an employee’s activity in light of the circumstances in which it occurs.

Labor & Employment Law: Determining the Accrual Date of a Wrongful Discharge Action

Preti Flaherty's Peter G. Callaghan and Gregory L. Silverman recently authored an article in the April 20th, 2016 edition of the New Hampshire Bar Association's Bar News. 

An employee has three years to bring a common law wrongful discharge claim in New Hampshire. Determining the exact date a wrongful discharge claim accrues remains an area of uncertainty under New Hampshire law.

Resolving the date after which a wrongful discharge claim is time-barred depends on the nature of the claim and whether the employee is alleging wrongful termination, a constructive discharge, or that the employer wrongfully failed to renew or offer a new contract....

Read more here.

Maine Law Court Weighs In Again on Whistleblower Claims

The Maine Supreme Judicial Court, acting as the Law Court, recently issued a decision reiterating the scope of protected activity under the Maine Whistleblowers’ Protection Act.  The decision is a win for employers and clarifies that an employee’s subjective belief that there has been a violation of law is not enough to bring a report about the alleged violation within the protections of the WPA – the employee’s belief must also be objectively reasonable.

The issue in Galouch v. Department of Professional and Financial Regulation was whether reports made by a Maine Bureau of Insurance employee – Patricia Galouch – qualified as protected activity where the reports related to concerns Ms. Galouch had about a court reporter.  The court reporter was under contract with the Bureau to provide certain services, and Ms. Galouch believed the reporter had breached the terms of her service agreement.  Ms. Galouch believed these breaches violated certain rules governing the Bureau’s procurement of services, and she reported her concerns to her supervisor.  The supervisor directed Ms. Galouch to refer contract issues to the Bureau’s contract administrator and instructed her to not address the contract issues herself, as they fell outside her job responsibilities.  Ms. Galouch, however, continued to communicate with the court reporter directly. Soon thereafter, the court reporter terminated her contract with the Bureau and explained she could no longer tolerate Ms. Galouch’s behavior.  The Bureau placed Ms. Galouch on administrative leave while it investigated allegations that she had exceeded the authority of her position.  As a result of the investigation, which was subsequently expanded to include other performance issues, the Bureau terminated Ms. Galouch’s employment.

The key issue for the Law Court was whether Ms. Galouch’s report concerning the court reporter’s contract qualified as protected activity under the WPA.  More specifically, the issue was whether Ms. Galouch had “reasonable cause” to believe that the court reporter’s conduct was unlawful.  The Law Court found that even if Ms. Galouch subjectively believed the reporter’s conduct was unlawful, there was no evidence demonstrating that a reasonable person would have believed so.  While acknowledging that the WPA “does not require an employee be able to cite to a particular statute or rule that may have been violated,” the Law Court held that Ms. Galouch’s “subjective belief alone is insufficient to meet the WPA’s ‘reasonable cause’ requirement.”

The NLRB's Latest Digital Developments

Last May, we highlighted a pending National Labor Relations Board (NLRB) case where the Board requested comments on whether it should reconsider its view that employees do not have a statutory right to use employer-owned email systems for protected concerted activities. Based on its request in Purple Communications, Inc., the Board appeared to be setting the stage for a potential reversal of its position in Register Guard—as well as a significant re-evaluation of what restrictions an employer may, and may not, impose on the use of its electronic communications systems.

It appears now, however, that the Board is still rehearsing its script:  last month, the Board issued its decision in Purple Communications, 361 NLRB No. 43, (Sept. 24, 2014), and explained that it would “sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.”  As a result, the Board’s decision did not reach the merits of whether Register Guard should be overturned.   This means that policies prohibiting any non-business use of an employer’s email system will most likely continue to be lawful—at least in the near term.

In another recent development, the Board held for the first time that merely “liking” a comment on a Facebook page may qualify as protected activity if it relates to comments that are otherwise protected under Section 7 of the NLRA.  Among the issues In Three D, LLC, 361 NLRB No. 31 (Aug. 22, 2014), was whether a bar unlawfully terminated several employees after discovering their discussions on Facebook.  The employees had learned that they owed additional taxes as a result of an accounting error by their employer and had taken to Facebook to vent their frustrations.  One of the employees did not offer any written comments, but did “like” another employee’s post.  The Board found that the comments—including the mere “liking” of another post—qualified as protected concerted activity because they concerned a group discussion of workplace complaints.  It was therefore unlawful for the bar to terminate the employees for their participation in the exchange.

The Board’s conclusion that “liking” a social media post may qualify as protected activity is not altogether surprising.  Other courts, for example, have found that “liking” a post qualifies as speech protected by the First Amendment, reasoning that “liking” a comment is just as much a substantive statement as the comment itself.  It is perhaps no surprise, then, that the Board’s decision appears to “like” the same logic.

Interpreting The Scope of Protected Activity: New Guidance From the Law Court

Controlling precedent interpreting Maine's Whistleblower Protection Act tends to be infrequent, so the Law Court's decision in Hickson v. Vescom Corporation, 2014 ME 27, Docket No. WAS-13-214, issued Tuesday, makes for interesting and instructive reading.

Richard Hickson was a shift supervisor employed by Vescom Corporation, a contractor that provided private security services at the Woodland paper mill in rural Baileyville.  Hickson's termination by Vescom followed a series of events that occurred after a visit to the mill by former Maine Governor John Baldacci, State Representative Anne Perry and a party of staffers.
 
Domtar, which owned the mill at that time, enforced specific safety policies pertaining to all employees and visitors.  Hickson alleged that he was terminated after reporting violations of those policies by the visiting group and for sending an email to Governor Baldacci expressing his concerns about the safety violations he observed during the visit.  Vescom claimed that his termination was driven by a couple of non-retaliatory factors, including Hickson's failure to follow Vescom's chain of command before he sent the email, as well as two previous instances of misconduct.

Vescom appealed a Washington County Superior Court jury’s decision in Hickson’s favor, which included a substantial punitives damages component.  The central issue on appeal involved portions of a jury instruction that treated the doctrine of protected activity and the lower court's ruling on a post-verdict motion for judgment as a matter of law.  At trial, Vescom argued that Hickson's report involved no violation of law or unsafe work condition or practice that implicated them.  Vescom unsuccessfully sought to obtain an instruction that would have defined protected activity in a limited fashion, that is, under circumstances in which Hickson reported what he reasonably believed to be a violation, condition or practice created by Vescom rather than by Domtar or the visitors themselves.
 
In an opinion authored by Chief Justice Leigh Saufley, the Law Court rejected Vescom's arguments with respect to the jury instruction and affirmed the lower court's denial of Vescom's motion following the jury's verdict, which was intended to set aside the verdict based upon an interpretation of whether Hickson's conduct met the statutory standard for "protected activity."
 
Elaborating upon its holding in a prior whistleblower decision, the Law Court clarified that "neither our [earlier] opinion nor the statute limits a whistleblower claim to those reports that are exclusively related to an affirmative action of the employer."  The Court's reasoning makes clear that a plaintiff-employee's report need only involve conduct that "bears a relationship to his employment," such that it "must be connected to the employer in such a way that the employer could take corrective action to effectuate a relevant change" in the conduct.  Among the evidence introduced at trial was the fact that Vescom had adopted Domtar's safety polices at the mill verbatim, and Vescom's employees, including Hickson, were required to enforce them.

One takeaway from the Hickson decision is that recent interpretations of "protected activity" are trending in favor of a broader rather than narrower scope.  Not only is this trend appearing in connection with Maine's statute, but several federal courts have also recently interpreted the doctrine broadly in the context of whistleblower claims brought pursuant to the Sarbanes-Oxley Act of 2002.  Another takeaway, of a more general nature, is that defending adverse employment actions involving whistleblowers is usually fraught with peril. The fact that an employee need only act "in good faith" in connection with the exercise of protected activity, with a "reasonable belief" concerning the subject of his or her complaint or report, often renders it difficult to challenge an employee's status as a whistleblower through pre-trial motion practice.  Once a dispute reaches a jury, legal arguments fall by the wayside and jurors rely more and more on what they already know and how they feel to evaluate gray areas presented in the testimony and in applying the court's instructions during their deliberations.

The complete decision in Hickson v. Vescom Corporation can be read here.