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Point for the (Work from) Home Team? Sixth Circuit Says Attendance at Work Not Automatically an Essential Work Function“You have to show up for work—it’s a part of your job.” Attendance at the workplace is an essential work function in an ADA case. But is it really anymore? With technology, some would argue that many jobs can be done from anywhere, and employees (particularly disabled employees) are more and more seeking to work from home. The Sixth Circuit addressed this issue recently in the decision of Hostettler v. College of Wooster.

Alternative Work Schedule

Heidi Hostettler worked in the HR department of the College of Wooster. She was four months pregnant when she took the job, and the told her that they would allow her 12 weeks of unpaid maternity leave, even though she didn’t qualify for it under the FMLA due to her short time of service. Her HR position was full-time, and Ms. Hostettler’s duties included performance-improvement plans, recruiting new hires, and designing training programs.

After the birth of her child and her 12 weeks of leave, Ms. Hostettler presented a note from her doctor stating that she had postpartum depression and one of the worst cases of separation anxiety her doctor had ever seen. The doctor suggested a return to work on a part-time basis for maybe a month or two. The college said okay, and Ms. Hostettler began working half days, but she had severe panic attacks if she had to work much later than noon. However, she returned emails from home and performed other work activities while away from the office.

There were disputes about whether the modified schedule was working. Several employees (through affidavits) said that there were no problems with Ms. Hostettler working part-time and from home. During this time, Ms. Hostettler got her first annual evaluation that indicated she was doing a good job and did not mention a problem with her reduced schedule. However, the college said the schedule was putting a strain on the rest of the HR Department. After several months, Ms. Hostettler submitted a new certification from her doctor that said she should continue to work part-time for at least several months.

After that latest certification, the college terminated Ms. Hostettler citing that she was unable to return to her assigned position of HR Generalist in a full-time capacity. A few months later, the college hired a male replacement. Ms. Hostettler sued for violations of the ADA and FMLA and for sex discrimination. The college moved for summary judgment stating that since the position considered full-time work as an essential function, and Ms. Hostettler couldn’t do that, that she was not a qualified individual under the ADA. The lack of being a qualified individual for the position also supported dismissal for the other claims. Ms. Hostettler appealed.

Sixth Circuit Analysis

The Sixth Circuit focused on the fact that the college admitted that the sole reason it fired Ms. Hostettler was because it could no longer accommodate her modified schedule. The court noted that the standard for her being qualified is that she can perform the essential functions of a job with or without an accommodation. The court pointed out that a job function is only essential if it is a core job duty—one that would fundamentally alter the position if it was removed. This analysis has to be done on a case-by-case basis.

In this case, Ms. Hostettler submitted evidence that she had satisfied all the core tasks of her position—even when she was only at her office for half days. She also submitted an affidavit from a co-worker who noted that there were no problems during Ms. Hostettler’s time in the position and that she completed all her work in a timely manner. Ms. Hostettler also showed that even her supervisor gave her a good review while she was working the part-time schedule. The court did note that there was evidence presented to the contrary —some projects had “dropped through the cracks” while Ms. Hostettler was working part-time. Another apparent dispute of fact was that while the college said it talked to Ms. Hostettler about the need for her to be at work full-time, she denied that series of discussions had taken place.

The Sixth Circuit held that full-time presence at work is not, on its own, an essential function. Time and presence requirements must be tied to some other job requirement. The court distinguished cases where presence at the workplace was considered an essential function by showing that in those cases, the person had to physically be at the worksite to complete the job. Instead, the court felt that this case was more like other instances where an employee could complete the essential functions while working remotely. According to the court, “full-time presence at work is not an essential function of a job simply because an employer says it is.” In the end, the court reversed the summary judgment, finding that

“an employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.”

Is Attendance an Essential Function?

While this case probably will soften the edges around some accommodation requests to work from home, it doesn’t automatically preclude an employer from claiming that full-time presence at the workplace is an essential job function.

  • Jobs where the work can only be performed at the job site—such as construction, manufacturing, call centers, etc.—-will not likely be affected.
  • Office work and sales jobs where technology may allow an employee to conduct work from other locations, or on other schedules, may be affected.

This decision should inspire employers to re-examine job descriptions and determine what sort of functions they believe can only be done at the job site. Those descriptions need to be detailed and supportable. Finally, remember that one size does not fit all, and every request has to be assessed on its own. You cannot deny an employee’s modified or work-from-home schedule because no one else has such a schedule. Each request must have a separate, well-documented interactive process.

In case you didn’t know, Oregon enacted the “Fair Work Week” law, making it the first state to legally restrict the scheduling practices of employers in the service sector. The highlights include:

  • an obligatory rest period for employees between shifts,
  • written work schedules in advance of shifts, and
  • additional pay for employees if employers want to deviate from the written work schedule.

Ahead of Schedule? What Oregon’s Fair Work Week Bill Means to the Retail, Hospitality, and Food Service IndustriesThe obligations for covered Oregon employers are extensive and onerous. Oregon employers would be well served to begin taking steps to ensure they are prepared to comply well before the effective dates (primarily in July 2018).

Which Employers Are Affected?

The law applies to retail, hospitality, and food service establishments in Oregon that employ 500 or more employees worldwide. In calculating the number of employees, a chain or integrated enterprise is considered one employer. If a separate entity controls the operation of another entity, the entities could collectively be considered an integrated enterprise. The factors to consider in this analysis are the interrelationship between the operations of multiple entities, shared common management, centralized control over labor, and common financial control. Oregon’s Commissioner of the Bureau of Labor and Industries is to adopt further rules outlining when and under what circumstances separate entities constitute a single integrated enterprise.

Which Employees Are Covered?

Oregon employees covered under the law must not only be one of at least 500 employees worldwide but also engaged in providing services relating to retail trade, hotels, motels, or food services, as those terms are defined in the 2012 North American Industry Classification System. However, the law excludes salaried employees, workers supplied by a leasing company, and employees of a business that provides services to or on behalf of the employer.

What Are the Key Provisions?

  1. Work Schedule Estimate: At the time of hire, an employer must provide a new employee with a written, good-faith estimate of the employee’s work schedule. The estimate must (a) include the expected monthly median number of hours, (b) explain that the employee may elect to be on a voluntary standby list, (c) indicate whether an employee who is not on the standby list can expect on-call shifts, and (d) set forth an objective standard for on-call shifts.
  2. Standby List: An employer may maintain a standby list of employees who may be asked to work additional hours. The employee must agree in writing to be on the standby list, and the employer must notify the employee in writing of the standby procedures. The employer’s notification must include (a) that the list is voluntary, (b) how an employee can get off the list, (c) how an employer will offer additional hours, (d) how the employee accepts additional hours, and (e) that the employee is not required to accept the additional hours.
  3. Advanced Work Schedule: An employer must provide a written work schedule at least seven days before the first day of work scheduled (beginning July 1, 2020, this advance notice period expands to 14 days.) The work schedule must be posted in a conspicuous and accessible location and written in the language the employer uses to communicate with its employees. If an employer subsequently changes the work schedule, the change must be timely and the employee can decline the change.
  4. Right to Rest: Unless an employee agrees, an employee generally gets a 10-hour break between shifts.
  5. Compensation for Schedule Changes: If an employer changes a work schedule (without the required advanced notice) and the change either (a) adds more than 30 minutes to a shift, (b) alters the date, start time, or end time with no loss in hours, or (c) constitutes an additional shift, then the employee gets an additional 1 hour of pay at the regular rate (over and above wages earned). If an employer changes a work schedule (without the required advanced notice) and reduces or cancels an employee’s scheduled hours, then the employee gets 1.5 times the regular pay rate for each hour scheduled but not worked. Likewise, an employee scheduled for an on-call shift but not asked to perform work gets 1.5 times the regular pay rate for each hour scheduled but not worked.

What Additional Rights Do Employees Have?

The law also contains anti-retaliation provisions and provides employees with a private right of action. Employers are expressly prohibited from interfering with an employee’s rights protected under the law and from retaliating or discriminating against an employee for asking about the law. Also, an employer may not retaliate against an employee who either (a) chooses not to be on the standby list, (b) requests removal from the standby list, or (c) declines to work additional hours as a result of being on the standby list. An employer is subject to a civil penalty (not to exceed $2,000) for coercing an employee into being added to the standby list, with each violation constituting a separate offense.

If You Are a Retail, Hospitality, or Food Service Employer, What Should You Do?

As of today, Oregon is the only state to have enacted this kind of scheduling law. Therefore, so long as you are not a qualifying “employer” with a business establishment in Oregon, there is no need to take any immediate action. However, if you are covered under the law or anticipate entering the Oregon market, you should begin preparing. The first step is to determine whether your business is a qualifying “employer” and is, thus, affected by this law.

The passage of Oregon’s Fair Work Week law – coupled with the recent passage of similar citywide legislation – suggests that you can expect more restrictions on the scheduling practices of retail, hospitality, and food service businesses in the coming years. Apart from the economic effects resulting from the discontinuation of on-call scheduling, the penalties for violating such laws (if Oregon’s law is any example) could be significant. Therefore, employers should keep an eye on this apparent legislative trend and should not hesitate to seek out legal counsel if they believe they might be affected.

The NLRB/EEOC Landmine – When Does Offensive Speech Amount to Protected Activity?Employers need to be on the lookout for instances of offensive employee speech, which may put them between a rock and a hard place as they navigate potential claims under either anti-discrimination laws or federal labor laws.

You have probably heard that Google terminated an employee earlier this month for saying (among other things) that gender inequality in the technology field resulted from biological differences. After James Damore (now former employee) circulated a lengthy written critique on the company’s diversity efforts, Google ended his employment. Google’s CEO sent a company-wide email announcing that Google terminated Damore because his statements violated the company’s code of conduct by “advancing harmful gender stereotypes in our workplace.”

Google’s response to the memo is not surprising. Over the last several years, the tech industry has faced increased scrutiny about gender inequality in the workforce. We have seen a handful of claims (both in and out of court) alleging sex discrimination and harassment in Silicon Valley. Ignoring for the moment the optics, workforce morale, and company culture potentially affected by Damore’s manifesto, the company acted to minimize its exposure under anti-discrimination laws. For example, if a female employee later sues Google for sex discrimination, Google can point to its hardline response as evidence that it is committed to the equal treatment of women in the workplace and does not tolerate attitudes to the contrary.

What Google may have failed to consider, however, are Damore’s potential claims under the National Labor Relations Act (NLRA), which protects employees’ rights to act together to improve pay and working conditions.

The day he was terminated, Damore filed a complaint with the National Labor Relations Board (NLRB), apparently claiming that his manifesto was protected activity and the company was trying to silence him by threatening his employment. (The actual complaint is not yet publicly available, but Damore has spoken out about it, and the NLRB site describes the nature of the complaint as “coercive statements.”) The day after Damore filed his NLRB complaint, the Eighth Circuit agreed with another NLRB order reinstating an employee terminated for making racial slurs to a group of African-American workers. Because that employee made the slurs during a nonviolent company strike, the Eighth Circuit held that he was participating in protected collective activity. Damore will likely point to the new Eighth Circuit opinion to support his NLRB complaint.

Whether offensive speech constitutes harassment is very fact-specific, as is whether an employee’s conduct amounts to protected concerted activity under the NLRA. Employers should always address instances of unprofessional or offensive comments, but they also need to be on the lookout for potential NLRB claims if the employee’s remarks reach a larger group of people (whether in person, in writing, or via social media).