Tag Archives: ADA

Favorite Firing: Do Not Terminate a Disabled Employee Without a Reasonable Accommodation Dialogue


EEOC sealBack in May 2016, Lowe’s, the home improvement store giant, agreed to pay $8.6 million to settle a lawsuit brought by the EEOC over Lowe’s firing of many individuals with disabilities when they exceeded the maximum amount of disability leave Lowe’s provided. The problem, as the EEOC saw it, was that Lowe’s failed to engage in reasonable accommodations beyond the standard disability leave policy. See U.S. Equal Employment Opportunity Commission v Lowe’s Companies, Inc., et al., C.D. Ca., Case No. 2:16-CV-03041-AB-FFM.

The Facts: This lawsuit began with three charges of disability discrimination filed by three employees of Lowe’s back in 2007 and 2009. These three plaintiffs alleged that Lowe’s violated the Americans with Disabilities Act (ADA) by terminating their employment when their medical leave of absence exceeded Lowe’s 180-day (later extended to 240-day) maximum leave policy. The plaintiffs claimed that failure to engage in any discussion about further accommodations beyond the maximum leave violated the ADA. They wanted extended leaves of absence as a reasonable accommodation.

The EEOC agreed with the plaintiffs and also claimed that thousands of other Lowe’s employees were in the same situation. The EEOC ultimately filed a lawsuit in the Central District of California, the terminated Lowe’s employees were found to be a suitable class, and the case proceeded as a class action.

It was settled in May 2016, and the Court approved the settlement on May 12, 2016. (A copy of the Consent Decree can be found here.) Lowe’s admitted no wrongdoing, and the Consent Decree is not an admission. However, the company did agree to settle the lawsuit for $8.6 million and also consented to comply with a variety of non-monetary provisions. Lowe’s agreed to contact the terminated employees in the class and pay their damages out of the $8.6 million fund, as calculated by the EEOC, and to donate the remainder (if any) to non-profit organizations benefiting the disabled.

Lowe’s also agreed to amend its policies so that it would “engage in the interactive process with any employee with a disability who requests leave as a reasonable accommodation.” And the company agreed to retain Equal Employment Opportunity consultants approved by the EEOC for four years. These consultants will advise on policies, track all requests for accommodation, and educate managers on their duties under the ADA.

The Moral: There are few bright lines when it comes to working through disability situations. If an employee requests an accommodation, the employer ignores that request at its peril. A firm policy regarding leaves of absence is no longer a firm policy—exceptions must be at least considered if the employee claims to be disabled and to need more time away from work.

When the ADA was first enacted in 1990, I worked with managers to parse through how to simultaneously comply with disability leaves, worker’s compensation laws, absence policies, and the like. The situation grew even more complex with the passage of the Family and Medical Leave Act in 1993. I used to tell managers to stack up all the applicable laws and policies like slices of Swiss cheese. Only if an employee’s situation fit in gaps in every layer could the employee be discharged with minimal risk.

What the Lowe’s case shows is that some of the legal layers have no gaps—all employees requesting a reasonable accommodation should at least be given consideration, and an employer cannot have a blanket rule prohibiting certain accommodations. The EEOC will not accept any mandatory maximum leave policy.

The Lowe’s case is also interesting because of the broad relief granted pursuant to the Consent Decree. The provisions in the Lowe’s decree are the types of relief that the EEOC is likely to seek in every disability case it decides to take to court. Employers should consider whether and when accepting these types of interference in their business are worth disposing of a lawsuit, particularly a large class action case of the type that Lowe’s faced. It doesn’t take a loss in court to cause upheaval in the business; settlement can also be onerous.

It is best, therefore, to avoid as many lawsuits as possible. Therefore, engage in an interactive reasonable accommodation dialogue, document that engagement and all options considered, and be clear on why the employee’s requested accommodation is not reasonable and would constitute an undue hardship on the business.

When have you dealt with a difficult reasonable accommodation case?

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Favorite Firing: Working While Intoxicated


417px-Interlocking_USC_Logo.svgA few months ago the University of Southern California fired its head football coach for showing up to work drunk. Then in December 2015, the coach sued USC, which shouldn’t surprise anyone with employment law experience.

Most cases in which alcoholism impacts the workplace are not so public, but this one offers lessons for both employees and employers.

The Facts: The facts of this case are disputed, because it is still in litigation. Here’s the version I’ve gleaned from the media:

Head Coach Steve Sarkisian allegedly attended a number of events while under the influence of alcohol and/or medications in the months before he was fired. In August 2015 he showed up to a USC event apparently under the influence, which provoked media headlines, and he later apologized. At a game in late September 2015 his staff suspected that he was under the influence.

And in October 2015, Coach Sarkisian “appeared not normal” at an event, according to one news source. A player said after that occasion that the coach “showed up lit to meetings again today.” His manager, Pat Haden, Athletic Director for USC, said it was “clear to me that he was not healthy,” as quoted on ESPN.com. Coach Sarkisian was instructed to leave, and he was asked to take an indefinite leave of absence.

A few days later, Mr. Haden announced that he had fired Coach Sarkisian. Coach Sarkisian entered a rehabilitation program.

Then in December 2015, the coach sued USC for breach of contract and disability discrimination. That lawsuit is in its very early stages.

The Moral: It appears that this situation has been a long time in the making, as are most situations involving substance abuse of any kind that impact the workplace. And how much of the behavioral problems are due to alcoholism and how much they should be excused will be issues in the lawsuit, as such issues typically are in cases involving substance abuse.

Alcoholism is a disability protected under the Americans with Disabilities Act, but having a disability does not protect an employee from the consequences of his or her behavior.

An employer may still maintain a policy prohibiting using drugs or alcohol during working hours and/or being under the influence of drugs or alcohol while at work. Employees can be fired for violating those policies, or for any other breaches of company behavioral policies (such as rudeness to customers or other employees), even if the employee is an alcoholic or addict and his or her bad conduct occurred while under the influence. Employees with addictions can also be held to the same performance standards as other employees.

As the EEOC states:

“The ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace. Consequently, an employee who violates such policies, even if the conduct stems from alcoholism or drug addiction, may face the same discipline as any other employee. The ADA also permits employers to require that employees not be under the influence of alcohol or the illegal use of drugs in the workplace.”

Also,

“employers may require an employee who is an alcoholic or who engages in the illegal use of drugs to meet the same standards of performance and behavior as other employees. This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism or illegal use of drugs need not be tolerated if similar performance or conduct would not be acceptable for other employees.”

The moral here is that employers need to have firm policies defining acceptable and unacceptable conduct. And they need to enforce those policies consistently. It won’t do for employers to permit non-addict curmudgeonly managers to yell at their subordinates, yet fire alcoholics who engage in the same behavior.

It is a good practice for employers to refer employees they suspect of having substance abuse problems to an employee assistance program, but having such programs is not required. And an employer can still enforce discipline, even if the employee seeks assistance, which appears to be what happened in the USC case.

Only time and litigation will disclose what happened in the USC case. Only the lawsuit or a settlement will now resolve the matter.

But this unfortunate situation is an opportunity for employers to review their policies and practices around substance abuse. And to train managers in how to handle future problems consistently with other performance and behavioral issues.

When have you had to deal with substance abuse problems in the workplace?

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Keeping Your Wellness Programs Well: EEOC Notice of Proposed Rulemaking


EEOC sealWellness programs are a popular component of many employee benefit plans. Employers use these programs to encourage healthy behaviors among their employees, thereby reducing long-term medical costs. In addition, these programs often provide financial incentives to employees to engage their interest and sometimes include contests and classes that promote camaraderie and improve the workplace culture.

Over the last fifteen years, I have worked with several employers in a variety of workplaces to design and implement wellness programs. The employers are usually concerned about how to balance the costs and benefits of the programs and how to measure whether the program has a positive impact on employee health. It is also important to focus on changing behaviors that employees can control, while not penalizing them for health issues they cannot control.

On April 20, 2015, the EEOC released a Notice of Proposed Rulemaking addressing how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs.

Previously, federal regulations defined acceptable wellness programs under HIPAA. After passage of the Affordable Care Act in 2010, several government agencies approved wellness programs that offered financial incentives to employees, so long as the incentives did not exceed 30% of the cost of coverage to employees. Incentives of up to 50% of coverage were permitted for programs related to preventing or reducing the use of tobacco products.

However, the EEOC was not one of the agencies involved in the earlier regulatory effort. The EEOC took the position that wellness programs designed under the earlier regulations may not comply with Title VII of the Civil Rights Act of 1964 or the ADA. The EEOC challenged several wellness programs in court, most notably in a lawsuit filed against Honeywell International, Inc. Honeywell’s program imposed a penalty on workers who refused to undergo biometric testing. Such penalties are a common component in wellness program design.

The EEOC’s enforcement efforts against Honeywell and other companies has made many employers hesitant to develop new wellness programs, despite the desire of employers to promote healthy behaviors among their employees and to manage their rising health care costs.

With its recent Notice of Proposed Regulations, the EEOC is finally providing guidance on how to design wellness programs it believes are acceptable under the ADA.

First, the EEOC says, wellness programs must be voluntary.

Wellness programs must be voluntary.

  • Employees may not be required to participate in a wellness program, may not be denied health insurance or given reduced health benefits if they do not participate, and may not be disciplined for not participating.
  • Employers also may not interfere with the ADA rights of employees who do not want to participate in wellness programs, and may not coerce, intimidate, or threaten employees to get them to participate or achieve certain health outcomes.
  • Employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used, and how it will be kept confidential.

Next, the programs can only offer limited incentives for employee participation or for achieving health outcomes.

Employers may offer limited incentives for employees to participate in wellness programs or to achieve certain health outcomes.

  • The amount of the incentive that may be offered for an employee to participate or to achieve health outcomes may not exceed 30 percent of the total cost of employee-only coverage.
  • For example, if the total cost of coverage paid by both the employer and employee for self-only coverage is $5,000, the maximum incentive for an employee under that plan is $1,500.

This 30% “incentive” basically accepts the existing HIPAA regulatory definition of “reward”, although there are some differences. Most notably, the EEOC proposed regulations cap smoking cessation rewards at 30%, instead of the HIPAA 50%, although if all the employer requires is that the employee answer a question about tobacco use, then a 50% incentive is permitted.

The Notice also limits incentives to 30% for programs that ask an employee to respond to a disability-related inquiry or undergo a medical examination. This is contrary to the HIPAA safe harbor exempting bona fide benefit plans from the ADA prohibition on medical examinations.

The Notice also specifically states that compliance with the proposed rules will not mean that an employer has complied with Title VII of the Civil Rights Act, nor with the Age Discrimination in Employment Act.  Thus, the EEOC’s proposed rules are narrowly limited to compliance with the ADA.

Moreover, the rules state that employers must provide reasonable accommodations to disabled employees who seek to participate in wellness programs, such as sign language interpreters at classes for hearing-impaired participants.

Thus, the EEOC’s proposed regulations are of limited help to employers seeking to design wellness programs. It is of some benefit to know that 30% incentives are acceptable, but the regulations do not go far enough.

For more information, see

EEOC Issues Proposed Rule on Employee Wellness Programs and ADA Compliance, by Terri Gillespie, HRLegalist.com, April 21, 2015 

Wellness Programs: Agencies Issue Helpful Guidance but Look Before You Leap, by Nancy Campbell, SWLaw.com, April 21, 2015

EEOC Publishes Proposed Rule on How the ADA Applies to Employer Wellness Programs, McGuireWoods.com, April 23, 2015

EEOC Finally Releases Notice of Proposed Rulemaking for Wellness Programs, EmployeeBenefitsUpdate.com, Monday, April 27, 2015

The EEOC’s New Wellness Program Regulations: Notable or Needless, by Michael Mishlove, GSHLLP.com, April 30, 2015

New Guidance On Wellness Programs, by Mathew Parker, LaborLawyers.com, May 2, 2105

What should employers do as a result of the new EEOC Notice of Proposed Rulemaking?

  1. Read the proposed regulations and evaluate your wellness programs for compliance
  2. Consult your attorney and/or benefit plan advisors about possible changes to your wellness plans.
  3. Send your comments on the proposed regulations to the EEOC by June 19, 2015, if you so choose.

What has been your experience with employee wellness programs? What has worked best at your company?

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Favorite Firing: When Employees Behave Badly . . . And Mental Illness Is Suspected


Photo by David Castillo Dominici. Published on 08 September 2014 Stock Photo - Image ID: 100286443. Freedigitalphotos.net

Photo by David Castillo Dominici. Published on 08 September 2014
Stock Photo – Image ID: 100286443. Freedigitalphotos.net

On a handful of occasions during my career, I had to deal with employees who were mentally ill. Several employees were depressed, and these situations could generally be worked through over time. But one individual had agoraphobia and wouldn’t leave his house, though his job required him to call on customers. Two others had schizophrenia, and their communications were difficult to understand and their workplace behaviors were bizarre. These were the more difficult situations. This month, I’m writing my “Favorite Firing” on one particular case of schizophrenia.

The Facts: “Sabrina” (not her real name) worked in an office environment, in a room where about ten employees worked. She had worked for the company for around twenty years. For most of her employment, her performance was adequate, though her behavior toward coworkers tended to be a little quirky. She didn’t have any friends among her colleagues, but they all got their jobs done.

As a Human Resources director, I became aware of Sabrina’s situation when her managers began complaining that she was accusing coworkers and managers of following her around. The managers denied that anyone was doing anything inappropriate toward Sabrina. Despite several conversations, Sabrina continued to accuse people of following her.

Then she began following others. To the rest room. To other departments. Her coworkers got freaked out. Sabrina was told not to follow anyone. She said she had to, because they were spying on her.

Sabrina was placed on a leave of absence and told to see her physician about her behavior. This was a risky move on the employer’s part, but workplace counseling was not getting through to Sabrina. While she was on leave, Sabrina sent us a lengthy, rambling diatribe of all the evil things that had been done to her by managers and coworkers. It was five pages of incomplete and run-on sentences, most of which made no sense. The company attempted to decipher her claims and investigate, but Sabrina’s allegations could not be substantiated.

Sabrina’s physician reported that she should be able to do her job, so she was returned to the workplace after a few weeks. The environment in the department did not improve, with both Sabrina and her coworkers reporting misdeeds. Everyone denied everything. The situation continued for several months.

Things came to a head when one of Sabrina’s managers complained that when she turned to confront Sabrina about following her down the hall, Sabrina stuck out her forefingers like guns and said “Gotcha.” It’s hard to tell what Sabrina meant by this, but the manager took Sabrina’s action as a threat of violence and was seriously shaken.

Sabrina was put on another leave, and was told she could not return without more information from her doctor about why she was behaving so oddly and assurances that her behavior would change. We hoped this additional leave would get her to seek medical help and perhaps begin medication that might improve her behavior. Again, a risky move on the part of the employer, but morale and productivity in the department were suffering and we could not continue as we had for so long.

We received no information back from Sabrina or her doctor, despite issuing deadlines in writing to Sabrina. After Sabrina’s FMLA leave rights expired, she was terminated, because we had no reason to think the situation would ever improve.

The Moral: We were fortunate that this case did not result in litigation. While the managers and I strongly suspected that Sabrina had schizophrenia, we had no verification. It would not have really mattered whether we ever got a diagnosis or not; our suspicions were probably enough to result in a finding under the Americans with Disabilities Act that Sabrina was protected because she was “regarded” as having a mental disability. We had to assume the ADA would apply to protect her.

Under the ADA, employers must engage in an interactive process with the employee to determine whether the employee can perform the essential functions of the job with or without reasonable accommodation. Sabrina had performed her essential job functions for many years. In her last couple of years of employment, her performance suffered, but we would have had to prove that she no longer met the essential job functions. We had some documentation of poor performance, but much of the problem was behavioral, rather than low productivity.

Moreover, we would have had to prove that we attempted reasonable accommodation to get her to do her essential job functions. Her job primarily involved processing paper. She might have been able to do that. But communications with coworkers in her own and other departments were also critical, and her workplace relationships were broken by her odd behavior. We had not suggested any accommodations to Sabrina, because we had no diagnosis and no understanding of what might help her. On the other hand, she had not suggested any accommodations to us either—she denied she had any problems, and blamed everything on her managers and coworkers.

The medical leaves we put her on were the only way we felt we could get Sabrina to take the situation seriously. Ultimately, even the leaves did not get her to provide us with any information about accommodations. What if her doctor had told us that Sabrina could work from home, or could work in an isolated environment? Could we have accommodated these proposals? We might have at least had to try.

No one wanted to fire Sabrina, but the company also did not want to put up with the disruptive behavior in her department. We decided it was the best course of action. But I’ve always wondered what happened to Sabrina.

When have you confronted mental illness in the workplace? How did you handle it?

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Favorite Firing: Employee Terminated for Peeing in a Cup


Human Resources managers find themselves dealing with the oddest situations. Some of them are quite gross. This Favorite Firing involves a guy who was terminated for peeing in a cup. When I first heard about the case, I assumed it was related to urine testing for drug use. But this case had nothing to do with drug testing—this was an employee who peed in a breakroom.

sterile-urine-cupFacts: The case of Johnson v. American Signature, Inc., Case No. 11 C 6467 (N.D. Ill. March 26, 2014), dealt with an employee who claimed he had “urinary urgency” and couldn’t get to a bathroom at work in time to relieve himself. So he urinated in front of a coworker in a breakroom in the workplace. He placed the cup on the breakroom counter, then moved it under the sink in the breakroom, and later disposed of it in the restroom.

After he was fired (surprise!) for this unseemly and unsanitary behavior, he filed a claim for disability discrimination under the Americans with Disabilities Act, claiming that his “urinary urgency” was a disability. The employer, a furniture retailer, claimed to know that plaintiff Johnson had mobility problems, but said it knew nothing about his “urinary urgency.”

The employer said that after its investigation, Mr. Johnson was terminated for violating the employer’s policy against “personal conduct which substantially impairs the associate’s ability by reason of its detrimental effect either on the associate’s relationship with other associates or the business or reputation of the company.”

This policy is vague enough to cover just about anything, but urinating in a common area in the workplace would have a detrimental effect on anyone’s relationship with coworkers.

The District Court that considered the case found that even if Mr. Johnson’s urinary problems were a disability, the employer had not known about it. Although Mr. Johnson claimed that the furniture company should have accommodated his disability, the Court found that the employer couldn’t accommodate what it didn’t know about. Moreover, Mr. Johnson had not tried to ameliorate his problem prior to the events leading to his termination, even though he had been aware of his urinary problems. He made suggestions only after his workplace “accident.”

As a result, the Court found that the employer could not have discriminated against Mr. Johnson and granted summary judgment in favor of the employer.

Moral: The moral of this story is that anything can happen in the workplace. And anything that can happen usually does.

Beyond that, the moral is that employers should engage in an interactive dialogues with employees when they learn of any employee disability or potential disability. They should also investigate after a workplace problem that might be related to a disability.

But employers are allowed to use common sense. And when an employee behaves inappropriately in the workplace without previously informing the employer about a disability, disciplinary action is warranted, including termination.

For more on this case, see the Court’s opinion here. And thanks to the Employer Handbook blog for reporting this case.

When has your employer had to deal with an unsanitary condition in the workplace?

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Favorite Firing: A Smelly Case


???????????Sometimes, an employer can bend over backwards to accommodate an employee and still be sued. In Kaufmann v. GMAC Mortgage Corporation, a 2007 Third Circuit case, the employer’s many good deeds were still punished with a lawsuit.

The Facts:  The plaintiff, Linda Kaufmann, started work for GMAC Mortgage Corporation in an office position in June 2002. She had severe allergies and complained about the perfumes and cosmetics that her co-workers (who all worked in a common area with her) wore.

According to the opinion issued by the Third Circuit Court of Appeals, in the first three months after Ms. Kaufmann began working for GMAC, her managers took the following actions:

  • They asked her co-workers to refrain from wearing perfume.
  • They spoke to specific employees whom she alleged were wearing perfume.
  • They moved her desk.
  • They changed the air filters in the office area.
  • They gave her a personal air filter and fan for her desk.
  • When she complained about a specific employee, they talked to that employee, and again reminded employees not to wear perfume.
  • They implemented a “perfume free zone.”
  • They moved her desk again to a more isolated area.

When Ms. Kaufmann continued to complain about smelling perfume, they again talked to a co-worker who was allegedly wearing perfume, though the manager could not smell anything.

In September 2002, GMAC granted Ms. Kaufmann twelve weeks of leave, even though she had not worked for GMAC long enough to be eligible for leave under the Family & Medical Leave Act.

Ms. Kaufmann returned to work in December 2002, and GMAC again reminded employees on several occasions not to wear perfume.

When Ms. Kaufmann continued to miss work, GMAC fired her in May 2003 – still less than a year after started work.

Several months after her termination, she sued GMAC. The federal district court granted GMAC’s motion for summary judgment, finding that GMAC had adequately accommodated Ms. Kaufmann’s disability. The Third Circuit affirmed in July 2007 – over five years after Ms. Kaufmann started work.

Thus, Ms. Kaufmann worked for GMAC for about eleven months, and they were in litigation with her for three-and-a-half years.

The Moral: As someone who becomes uncomfortable around strong perfumes, colognes, and certain pollens, I was sympathetic to Ms. Kaufmann’s complaints, though I have never thought of myself as disabled as a result of my sensitivities. There was some question whether Ms. Kaufmann’s allergy was a disability under the Americans with Disabilities Act, but the courts assumed it was a disability, and dealt with the reasonableness of the employer’s attempts at accommodation.

It is hard to see what more GMAC could have done for her. Certainly, GMAC spent a great deal of time accommodating Ms. Kaufmann’s allergy, yet she was not satisfied. She apparently wanted a “perfectly-sealed environment,” according to the Third Circuit, which the Court said was not possible.

The Court said:

“Kaufmann argues that GMAC failed to accommodate reasonably because its perfume-free policy was not adequately enforced – people wearing products with scents came into contact with Kaufmann at work.

Kaufmann seems to claim that GMAC should have provided an absolutely odor-free environment in order to accommodate her but Kaufmann does not explain how it would be possible to create such a perfectly-sealed environment.”

The Court listed the many actions GMAC had taken to improve the air quality in the workplace, and specifically around Ms. Kaufmann’s work area, and concluded that GMAC met any obligations it had to accommodate Kaufmann’s allergies.

All that can be said about accommodation from this case is that GMAC did enough. We don’t know what lesser measures might have been adequate.

There are many situations in which an employee’s health complaints may or may not be disabilities. This case demonstrates how important it is to take every request for accommodation seriously, even when the employer isn’t certain whether the employee is disabled under the ADA.

When an employer thinks it has done enough, it should do something more before terminating the employee. And, if termination does result, the employer should still expect to be sued.

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Favorite Firing: Can an Employee Be Fired for Calling Someone “a Little B!+$#” ?


MP900444810A new case in Kentucky raises interesting questions about the differences between public and private employers. The Kentucky case involves a bus driver who worked for a school district. The bus driver claims she was fired in violation of the First and Fourteenth Amendments of the U.S. Constitution because of something she said on Facebook. As a public employer, the school district is subject to constitutional limits on how it deals with its employees.

Employees of private employees cannot claim the protection of the First and Fourteenth Amendments. But the myriad of federal and state laws might still permit an employee to sue if a private employer fired the employee in similar circumstances.

All employers should re-assess their social media policies, given recent developments in state legislatures and in the National Labor Relations Board (NLRB).

The Facts: Debora Robinson had been a school bus driver for the Grayson County Board of Education in Kentucky for many years. Robinson sent a private Facebook message to a female student in the Grayson County school district. In this message, Robinson told the student not to bully Robinson’s son.

Further Facebook messages were exchanged between Robinson and the girl, in which both used profanity. In one of the later messages, Robinson referred to the student as “you little bitch.” When the school district learned that Robinson had called the student a “little bitch,” she was fired.

Robinson then sued in the U.S. District Court for the District of Kentucky, claiming that her message had nothing to do with her employment, because she was “off the clock” when she sent it, she used her own computer, and the student had never been a rider on her bus. She alleged that her termination violated her freedom of speech rights under the First Amendment of the U.S. Constitution, her equal protection and due process rights under the Fourteenth Amendment, and also violated similar provisions in the Kentucky Constitution.

The school district told Robinson she was fired for violating school board policy. Robinson’s lawsuit claims there was no written social media policy, nor any guidelines telling employees what they could and could not say in social media communications with students.

This lawsuit was just filed on January 8, 2013, so we don’t know yet how it will turn out. (Quite possibly, the case will settle, and we won’t ever know the outcome.)

But the case raises cautions for all employers – public and private.

The Moral: Employers might be damned if they do and damned if they don’t in these situations.

If Robinson hadn’t been fired, might the student have sued the school district for permitting its employee to harass her? As far as  I know, the student didn’t sue, but such a lawsuit is quite plausible. After all, an employer might well be found to be liable if one employee sends sexually suggestive messages to another employee, and the employer does nothing to stop the harassment. Why wouldn’t a school district be found liable for the conduct of its employee toward a student?

But there are many pitfalls for employers to watch for as they seek to contain employees’ conduct toward others.

Constitution: The Constitutional theories Robinson raises in her complaint apply to all federal government employees, as well as to state and local government employees through the Fourteenth Amendment.

These government employees have protected property rights in their jobs, which governments cannot take away without due process. Due process requires notice and a hearing. If an employee does not have notice of what might be grounds for dismissal, the employee can attack his or her dismissal or other disciplinary actions as unconstitutional.

Even though employees of private companies have no constitutional protections at work, there are many other grounds for private employees to sue in situations similar to Ms. Robinson’s.

Federal Law. First, there are federal nondiscrimination statutes such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. Private employers can have policies that say an employee may not use profanity on or off the job, so long as that policy is enforced in a non-discriminatory fashion. However, if only minorities or women or foreign nationals are fired for violating the policy, then the terminated employees have good claims for employment discrimination.

State Law. Many state laws also protect employees from dismissal unless their conduct is job-related.  For example, in California, Labor Code Section 96(k) provides that employees may not be disciplined for lawful conduct during non-work time away from the workplace. Some other states have similar laws. Laws in this area vary widely state by state, and each state has different nuances and interpretations in its statutes.

NLRB.  Recent developments at the National Labor Relations Board attempt to limit how even non-union employers can discipline employees for off-work behavior, including their use of social media.

For all these reasons, both public and private employers should have clear policies on employees’ conduct away from the workplace, including use of social media and other communications tools.

Most employees today have access to email and social media tools, which they may well use to communicate with other employees and with customers and members of the public they encounter during their work days.

Employers are only one text message or Twitter or Facebook post away from potential liability for what their employees do; they should be clear on their expectations for how employees communicate in ways that might impact the workplace.

Employers should involve experienced Human Resources staff and employment attorneys in the drafting and review of these policies. It is important to be sure the employer is not overreaching under the state and local laws where the employer is located.

Meanwhile, we will watch to see whether the Robinson case determines whether employees in Kentucky can call someone a “little bitch” with impunity.

How far do you think employers should be able to control their employees’ conduct? Does it make a difference whether the person complaining is a customer or user of the employer’s services (as the student was in the Robinson case?)

* * *

Please send me ideas for stories on workplace terminations for this series. If you have an interesting situation, please email me or leave a comment below. But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  I will only publish verified stories.

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