In a 2014 opinion, Judge Gorsuch concluded that a leave of absence of more than six months was not a “reasonable accommodation” for an employee’s disability.  Hwang v. Kan. State Univ., 753 F.3d 1159 (10th Cir. 2014).  He therefore ruled that the plaintiff in that case had failed to establish that her employer, a state university, had violated her rights under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

That opinion ignored the central purposes of the Rehabilitation Act and of the Americans with Disabilities Act (“ADA”).  Congress instructed the courts to use the standards adopted under Title I of the ADA — the employment provisions of that statute — in deciding cases under § 504 of the Rehabilitation Act.  29 U.S.C. § 794(d).

The ADA and § 504 prohibit employers from not making reasonable accommodations to the known physical or mental limitations of an employee or applicant who is otherwise qualified for his or her job.  29 U.S.C. § 12112(b)(5).  An employer can avoid liability by demonstrating that the accommodation would impose an undue hardship on the operation of the employer’s business.

Congress made a number of legislative findings when it enacted the ADA.  It found, among other things, that “discrimination against individuals with disabilities continue[s] to be a serious and pervasive social problem”; that people with disabilities “occupy an inferior status in our society” and “are severely disadvantaged,” including economically; and that this discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”  Section 504 of the Rehabilitation Act and Title I of the ADA were enacted to combat that discrimination and to try to prevent disabled persons from being trapped in an endless cycle of poverty.

Prof. Hwang needed to take time off work in order to get treatment for the leukemia.  She was able to get six months’ paid leave, some of which was “shared leave” — leave time that other university employees donated to her.  She asked for additional leave for the spring semester, promising to return in time for the summer term.  But she had not been idle even when receiving chemotherapy.  As the district court — the trial court — explained, two substitute teachers covered her classes while she was receiving treatment; she “prepared the substitutes and shared her teaching materials, lesson plans, and syllibi” with them; and she “consulted with the substitutes through phone calls and e-mails while she was hospitalized.”

The university refused to extend her leave, based on a regulation that limited her leave time to six months.  That led to the termination of her employment and to her lawsuit.

In an earlier disability discrimination case, Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir. 1998), Judge Gorsuch’s court held or at least implied that a one-year leave of absence could be a reasonable accommodation.  Judge Gorsuch cited, but did not follow, that decision.  Instead, he concluded that anything more than a six-month leave of absence would not be a reasonable accommodation for Prof. Hwang or to any other employee.  He claimed that the Rehabilitation Act “seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”

The cases interpreting these statutes have made it clear that an employee is not entitled to the accommodation of his or her choice, if more than one accommodation is possible.  Employers are not required to create new jobs for disabled employees, and need not offer indefinite leaves of absence.  However, whether a particular accommodation is reasonable, and whether that accommodation would impose an undue hardship on the employer, are highly fact-specific inquiries.  Where the facts are in dispute, as they were in this case, the court can and should not decide these questions based only on the documents submitted by the parties, as was done here on a pretrial motion.  Instead, those matters can and should be decided by the jury at trial.

Judge Gorsuch told the Senate Judiciary Committee that judges should not be secret legislators.  Yet that is exactly what he did in this case.  His six-month limit on employer-granted leaves does not appear in either of these statutes.  It contravenes the clear Congressional intent that these statutes be interpreted in a way that would eliminate discrimination and make it possible for disabled persons to be productive members of society.  He chose, instead, to affirm a decision to fire a cancer survivor solely because her doctor recommended that she not return to work within six months.

There is more to this story.  For example, Judge Gorsuch twisted the words of an EEOC compliance document in a way that misrepresented its meaning.  But we need not go there.  He interpreted a statute, which requires an individualized assessment of the demand of a disabled person’s job and of the ability of that person to perform that job, to impose a blanket rule that prevented an employee from being able to continue performing her job.  That is deeply troubling and should be disqualifying for the most important court of law in the United States.

This is the first post in what I expect to be an occasional series on the doctrine of employment at will.  At this point in time, I have no idea how many posts I may write on this subject.

Employment at will is the most important concept in employment law that most people do not understand.  Most lawyers in the U.S. are familiar with the concept.  Some laypeople have a general idea that their state (if it’s not Montana) is an “employment at will” state.  But they often do not know what that means, and almost certainly do not know how this legal doctrine originated.

Many laypeople in the U.S. do not understand that they are employed at will.  They believe that their employers must have a good reason to fire them.  If they were employed in almost any other country, that belief would be accurate.  The United States is one of the few countries in the world in which an employer can fire an employee without having to have a reason for that decision.

What is employment at will?  I like to define it as the legal presumption that a person who is employed for an indefinite period of time can be fired for a good reason, a bad reason or no reason at all, as long as it’s not an unlawful reason.

There are several situations in which this legal doctrine does not apply:

1. Persons who have a contract for employment for a specific term, or length of time.  Not surprisingly in 21st century America, there is a class divide between the few who have such contracts and those who do not.  Highly compensated executives, professional athletes and media employees (e.g., television news anchors) often have such contracts, given their market power.  Such contracts are rare outside those employee groups.
2. Employees who are covered by a collective bargaining agreement — a contract between a labor union and an employer — generally can be fired only for a good reason.
3. Public employees often can be fired only for cause.  That generally applies only after the employee has satisfactorily completed a probationary period of employment.  And some government employers, usually local governments, maintain employment at will policies.

Outside those situations, employment at will is the default rule in the United States.  Plaintiffs’ lawyers try to identify claims that could provide relief for their clients.  The most common are statutory claims, such as those based on anti-discrimination laws; contract claims; and tort claims, such as fraud or wrongful discharge.  But employment at will is the background to all of those claims.  It is what many judges feel to be the state of nature, the way they understand the world of employment works.

In reality, employment at will arose from obscure origins, is justified by questionable assumptions, and often leads to unjust results.  Many people in the U.S. accept it because they too believe that that is how the world works.  The fact that employment at will can be used to facilitate sexual harassment, or to punish whistleblowers, or to prevent unionization is viewed as an unfortunate by-product of a rule they believe to be universal.

In fact, that is not how most of the world works. But that will require more posts to explain.

Last week, I wrote a blog post about a new statute, enacted in 2016, which requires Colorado employers to allow employees and ex-employees to inspect and obtain copies of documents in their personnel files.  In this post, I will discuss another 2016 Colorado statute.

That statue, which added a new sec. 24-34-402.3 to the Colorado Anti-Discrimination Act (“CADA“), requires all Colorado employers to provide reasonable accommodations for health conditions related to pregnancy or the physical recovery from childbirth.  It also provides:

• Any accommodation must be requested in writing.
• An accommodation cannot impose an undue hardship on the employer. The courts could and should use the definition of “undue hardship” adopted under CADA and the federal Americans with Disabilities Act (“ADA”).
• An employer cannot take an adverse employment action, or deny employment opportunities, to an employee who has requested a reasonable accommodation or based on the need to make a reasonable accommodation.
• An employer cannot require an employee to accept an accommodation that the employee has not requested or that is not necessary for the employee to perform the essential functions of the job.
• An employer cannot require that the employee take leave if the employer can make another reasonable accommodation.

The definitions make it clear that this new statute uses retaliation and ADA concepts.  The definition of “adverse action” is based on the “materially adverse” concept that the Supreme Court has applied to retaliation cases. The definition of “reasonable accommodation” is also broad, and specifically includes “more frequent or longer break periods” and “more frequent restroom, food, and water breaks.”  The term “undue hardship” is defined to mean “significant difficulty or expense to the employer.”  That definition includes factors that may be considered in determining whether an accommodation would impose an undue hardship.

An employer cannot be required to do any of the following:

• Hire new employees that the employer otherwise would not have hired;
• Discharge an employee, transfer an employee who has less seniority, or promote an unqualified employee;
• Create a new position, including a light-duty position, “unless a light duty position would be provided for another equivalent employee”; or
• Provide paid leave beyond that which is provided to similar situated employees.

This new statute is far from perfect.  It includes many compromises that were necessary to get it passed.  Still, it represents a major legal advance for pregnant employees in Colorado.  It requires employers to provide accommodations, including leave time, that frequently have been denied to pregnant employees.  While it is not certain that the courts will interpret this statute correctly, its enactment should make it easier for pregnant employee and new mothers to continue to work.  In short, it made Colorado a more family-friendly state, without imposing significant hardships on employers.

One relatively recent change in Colorado employment law is a personnel file access law enacted by the Colorado General Assembly in 2016.  That law became effective on Jan. 1, 2017.

This law added a new section 8-2-129 to the Colorado Revised Statutes.  Some highlights of this new law are:

• It covers most employees and employers in Colorado, OTHER THAN those covered by the Colorado Open Records Act.  That exemption covers public employees.  The new statute applies to all non-exempted private employers, regardless of the number of employees who work for an employer.
• It does not cover any financial institution chartered and supervised under state or federal law, including banks, trust companies, savings institutions and credit unions.
• Its definition of the term “personnel file” is broad.  That term includes all personnel records “that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action.”  There are four exceptions:
  • Documents (such as medical or FLMA documents) that federal or state law requires to be kept in a separate file from the personnel file;
  • Documents or records pertaining to previous employers’ confidential reports;
  • An active criminal investigation, active disciplinary investigation by the employer, or active investigation by a regulatory agency; and
  • Any information that identifies any person who made a confidential accusation.
• There are limits to requests to inspect and copy personnel files.  They are:
  • An employee or ex-employee can request copies of personnel files at least annually; except that an ex-employee can request inspection once, and presumably only once, after termination of employment.
  • The inspection and copying shall occur at the employer’s office.
  • The inspection must be at a time that is convenient to both the employee and employer.
  • The employer can require the inspection to occur in the presence of another person designated by the employer.
  • The employer may require the employee to pay the reasonable costs of duplication of documents.
• The law does not require an employer to maintain personnel file or any particular documents in a personnel file.  However, those requirements might be imposed by other laws.
• The law does not create a new cause of action — that is, a right to file a lawsuit to compel compliance or to seek damages for an employer’s failure to comply.

A request to inspect and copy a personnel file should be fairly easy to prepare. According to the statute, it does not have to be on a particular form or in any particular format.  However, nothing in this statute prohibits any employer from requiring that an employee use a particular form.  Inspection and copying should be a relatively simple, straightforward process.

An employer that fails to produce personnel documents under this statute could face judicial and/or jurors’ skepticism if it claims to have “discovered” missing documents later.  Specifically, a judge or jury would be free to conclude that these “recently discovered” documents are fakes, created after the fact to justify an earlier employment action.

Employees, ex-employees and their representatives should use this new statute routinely.  Employees’ lawyers know that it is better to discover a negative document before filing a lawsuit, rather than to learn about it after spending hundreds of hours and many thousands of dollars in litigation.  In some cases, learning what documents are in a person’s personnel file might cause that person not to file a lawsuit.  Early inspection can avoid nasty surprises later.

Colorado and about 19 other states have enacted personnel file access laws.  This new law will help shed a light on employment practices that, until now, too often have occurred in the dark.

There are very straightforward reasons that labor unions and their members have argued that employees, whether they belong to a labor union or not, engage in protected concerted activity when they attempt to join together in a putative, or proposed, class action or collective action in connection with workplace disputes.

Some of those workplace disputes involve allegations that the employer has violated the Fair Labor Standards Act (“FLSA”) by not paying overtime and/or the minimum wage to employees who should have received those payments.  Or employees might bring a discrimination lawsuit based on conduct that applies to a group of employees.

Class actions or collective actions (the latter includes FLSA and federal age-discrimination claims) can be brought more efficiently, at less expense, than the same claims in multiple lawsuits.  In addition, the employer’s liability exposure is higher in a class or collective action.  Of course, that is why employers want to prevent employees from filing those lawsuits.  But no matter how understandable those employers’ motives may be, that does not justify their efforts to prevent employees from exercising their statutory right to engage in concerted activity for their mutual benefit.

That is why the three cases that the Supreme Court has decided to review are so important.  We do not know whether the employees’ position will win a majority of the Court, or whether a majority will find for the employers, or whether these cases will be affirmed on a 4-4 split vote.

In the meantime, Rep. Goodlatte has introduced HR 985, which has the ostensible purpose to “amend the procedures used in Federal court class actions and multidistrict litigation proceedings to assure fairer, more efficient outcomes for claimants and defendants, and for other purposes.”  The full text of that bill is not available on the Library of Congress Web site.  However, I have seen a draft of that bill.  That draft contains provisions that would limit the plaintiffs who could file class actions, impose burdensome new limits on the distribution of money in class actions, and restrict the amount of attorneys’ fees that could be recovered in class actions, among other things.

The right of the people to join together in class actions is under attack.  Keeping existing rights, and protecting employees from one-sided, unilaterally imposed limits on their ability to join together, will require hard work and pressure on Congress.  We can win this fight, but it won’t be easy.

The principal arguments for the Fifth Circuit’s position that the Federal Arbitration Act (“FAA”) preempts the National Labor Relations Act (“NLRA”) in this area are contained in that court’s earlier decision in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). Those arguments are that a prohibition on class-action waivers would discourage arbitration, contrary to the purpose of the FAA; that the NLRA does not expressly state that it overrules the FAA; and that modern class action practice began in 1966, more than 30 years after Congress enacted the NLRA.

That analysis ignores the fact that protection of employees’ right to engage in concerted activity is at the very heart of the NLRA.  The specific prohibitions in section 8(a) of the NLRA, 29 USC sec. 158(a), are based on the right to engage in concerted activity set forth in section 7 of the Act, 29 USC sec. 157.  The specific forum in which these employees want to engage in that concerted activity is different from the workplace settings specifically considered when Congress enacted the NLRA in 1935.  But the fact that the current struggles occur in a legal setting, rather than on the picket line, and use motions and briefs, not strikes, should make no difference.

The issue of class actions, in contrast, is peripheral to the FAA.  Many arbitration cases right now are class arbitrations.  A class arbitration takes more time and is procedurally more complex than an individual arbitration.  But a class arbitration for, say, 50 employees is more efficient than 50 individual arbitration cases.

The fact that the the text of the NLRA does not contain an explicit override of the FAA should make no difference.  Congress can be forgiven for not including any such provision in the NLRA, since the FAA states that it does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”  9 USC sec. 1.  It is likely that Congress did not think the NLRA conflicted with a statute that said it didn’t apply to these contracts of employment.

In addition, labor unions and employers have long used arbitration as a means of resolving disputes under collective bargaining agreements.  However, those arbitration cases can involve what essentially are class claims, such as a dispute over an employer’s alleged failure to pay contractual wages to tens, or hundreds, or thousands of union member-employees.  It is disingenuous to claim that an employer can prohibit employees from filing a class arbitration, even while it participates in class arbitrations filed by those same employees’ labor union.

The fact that Rule 23 of the Federal Rules of Civil Procedure, which sets forth the procedures for class actions, did not contain those procedures until 1966 should make no difference.  That would be like arguing that the NLRA cannot prohibit an employer from forbidding its employees to discuss workplace issues via e-mail, since e-mail did not exist in 1935.  The specific method of concerted activity might be new, but the protections for concerted activity have been central to labor law for more than 80 years.

A fair reading of these two statutes should support the NLRB’s decisions in these cases.  However, it is not clear that such a fair reading will receive the approval of a majority of the current eight-justice Supreme Court.  And it is not clear just how any new Justice on that Court, whether it is Judge Neil Gorsuch or anyone else, would rule in these three cases.

Why is this important?  Tune in for Part IV.

What does the National Labor Relations Board (“NLRB or “the Board”) have to do with bans on class actions, created through agreements that some employers have imposed unilaterally on their employees?  The answer is quite a lot.

Section 7 of the National Labor Relations Act (“NLRA”), 29 U.S.C. sec. 157, prohibits employers from interfering with, coercing or restraining their employees from engaging in “concerted activities for the purpose of … mutual aid or protection.”  Those protections are not limited to just unionized employees or to employees’ activities in the workplace.  In a series of cases, federal appeals courts have held that sec. 7 also grants employees the right to band together to file a lawsuit to achieve more favorable terms or conditions of employment.

The NLRB decided, during the Obama Administration, that class action bans — which require covered employees to file employment-related lawsuits individually, rather than filing cases with multiple plaintiffs or  class or collective actions — violate sec. 7 of the NLRA.  The Supreme Court has decided to hear three cases that raise that issue.  Those cases are NLRB v. Murphy Oil USA, Inc.; Epic Systems Corp. v. Lewis; and Ernst & Young LLP v. Morris.  The appeals court decisions in those cases are split.  The Seventh and Ninth Circuits upheld the Board’s position in the Epic Systems and Ernst & Young cases, while the Fifth Circuit ruled for the employer in the Murphy Oil case.

The Murphy Oil decision doesn’t contest the logic that a ban on class actions interferes with employees’ right to engage in concerted activity.  Instead, its decision is based mainly on those judges’ conclusion that the NLRA is not different in kind from other statutes, such as the Age Discrimination in Employment Act at issue in Gilmer, “that that have been found to give way to requirements of arbitration.”  That decision viewed the right to file a class action, or the similar procedure of a “collective action” in wage/hour or age discrimination cases, is just a “procedural device,” not a substantive right.

The Supreme Court granted certiorari — that is, it decided to review — these three cases on Jan. 13, 2017.  Even if Judge Gorsuch is confirmed as a Supreme Court justice, it is not clear whether he would be able to participate in the oral argument and in the decision in these cases.  In the next part of this multi-part post, I will discuss the reasons why I believe that the Court should affirm the NLRB’s decisions in these cases.