No, We Were Not Exaggerating When We Told You About the ADA and the NLRB
Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
One of the difficulties I face in counseling clients, and that MEA faces in training and advising members, is a widening credibility gap: often, when we tell you about what recent employment laws require, what we say is so outlandish that you assume we are exaggerating, or that we are so caught up in the intricacies of the law that we have lost our feel for the realities of the workplace.
Understandable, but wrong.
Here are two very recent examples that arise from two of the prime employment law offenders – the NLRB, and the ADA.
The NLRB Really Is That Unrealistic
You have likely heard of the NLRB’s recent pronouncements from MEA and myself, or in the media. In the purported effort to protect the rights of workers to join together and organize to improve workplace conditions – referred to as “Section 7 rights” — the NLRB has, for example, invalidated policies prohibiting employees from publishing through social media their angry rants about why their supervisor is incompetent and irrational, or how stupid, even evil, they believe their employer to be. The NLRB has been immune to the fact that social media postings of this type are read by customers, competitors, prospective employees and investors, and that employees can meet, organize and attempt to effectuate workplace changes without, at the same time, overtly attempting to damage the business and ruin the reputation of their employers.
And the beat goes on …
The Whole Foods Company implemented a policy banning employees from recording conversations, phone calls and meetings without the consent of all parties (something that can easily and surreptitiously be done on a smartphone or similar device). The stated purpose of the policy was “to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.”
Most residents of the real world would consider a policy of this nature to be a reasonable workplace standard … especially since, in many states, including Pennsylvania conduct, of this type is a crime. Not so, the NLRB.
The NLRB ruled that this policy violated the employees’ Section 7 rights: “Photography and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media, are protected by Section 7 if employees are acting in concert for their mutual aid and protections and no overriding employer interest is present.” The NLRB found that “no overriding interest” was present in the Whole Foods case – that is, there was no overriding interest to protect basic rights of privacy, promote an open workplace dialogue without fear that private conversations will be posted on Facebook, secure potentially confidential information, and protect against criminal conduct.
The Ever-Expanding ADA
You have heard us tell you about how careful you need to be when faced with the hint of an employee disability, and how important it is to begin the “interactive dialogue” at the earliest possible time. The boundaries of these fundamentals keep expanding.
Jacobs, a construction company, offered Cannon a field engineer position at a mine in Colorado. He passed his post-offer drug test, but during his medical examination he disclosed that he had a rotator cuff problem. The company doctor cleared him for employment on the condition that Cannon (1) not drive a company vehicle, (2) not lift, push, or pull more than 10 pounds, and (3) not work with his hands above shoulder level. A manager took the position that Cannon could not perform the job with these restrictions, as the job site was located “in the mountains with rough/rocky terrain” and “spread over several miles.”
Ultimately, despite the fact that Cannon provided documentation that he could perform the required duties, Jacobs withdrew the offer – that is, Jacobs failed to hire Cannon, and Cannon never became a Jacobs employee. Cannon sued.
The Court was untroubled by its extension of the ADA to an individual who had an offer, but was never hired. Having summarily cleared that hurdle, the Court ruled that Jacobs violated the ADA because it failed to engage “in the interactive process the law requires” and, instead, it rescinded the offer without exploring, in detail, how it might reasonably accommodate Cannon.
You have heard this before: you cannot depend on your common sense when attempting to navigate through the hazards of employment law.
Let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.