State Reveals Its Template for Notice to All Newly Hired Employees
Balancing Worker Privacy with an Employer’s Rights to Protect Safety
The ability of employers to follow the law – and of judges to enforce it – depends on clearly defined standards of responsibility and conduct. Vaguely or otherwise poorly stated rules can lead to inconsistent outcomes in very similar factual situations. This danger of arbitrary, unpredictable consequences is perhaps no better illustrated than in the recent struggles of three appeals judges to define the terms of the federal Americans with Disabilities Act (ADA) in Weaving v. City of Hillsboro (9th Circuit, D.C. No. 3:10-cv-01432-HZ, August 15, 2014).
The ADA forbids workplace discrimination against a “qualified individual on the basis of disability.” “Qualified individual” means a person who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. Under the ADA, a “disability” is “a physical or mental impairment that substantially limits one or more major life activities,” with “a record of such an impairment,” or who is “regarded as having such an impairment.” The ADA provides examples of such major life activities, including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.”
The challenge in the Weaving case appeal was whether the ADA’s protections should extend to an individual terminated over recurring interpersonal problems with co-workers that he and testifying mental health practitioners attributed to so-called attention deficit hyperactivity disorder (ADHD). Two of the three appeals judges concluded that Officer Weaving’s sometimes gruff, offensive manner – even if the supposed result of a purported ADHD condition – did not deserve ADA protection because his behavior evidenced only an inability “to get along with others,” not a major life activity. The third judge disagreed, contending that Weaving’s periodically boorish behavior amounted to a substantial impairment of the ADA-protected major life activity of “interacting with others.”
While employers might take heart in the immediate result of the Weaving case, that (to use the court’s term) “jerks” do not deserve ADA protection, the decision really should give neither workers nor managers comfort since it leaves the dividing line about as clear as mud between: a) disruptive conduct from which an employer can protect its workforce by suspension or termination of the perpetrator; and b) perhaps offensive but protected behavior stemming from a disability that a business must seek to reasonably accommodate.
The City of Hillsboro, Oregon terminated Matthew Weaving from its police force in late 2009, in part based on the report of his superior that Weaving had created a hostile work environment for his junior officers and peers for actions described as “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant, and vindictive.” Weaving at page 10.
Officer Weaving then sued the City for ADA discrimination, alleging that he deserved protection because his diagnosed ADHD condition substantially limited his major life activity of “interacting with others.” The City appealed after a jury awarded Officer Weaving well over $600,000 in damages and over $139,000 in attorney fees. Weaving at page 11.
Weaving contended his situation was similar to the systems analyst who was able to maintain an ADA case in McAlindin v. County of San Diego (9th Cir., 1999) 192 F.3d 1226. There, Mr. McAlindin was able to convince two out of three appeals judges that his claimed panic attacks, “fear reaction,” and “communicative paralysis” created a substantial limitation on his major life activity of interacting with others. 192 F.3d at 1235-1236. Weaving also argued he was entitled to ADA protection just as an equipment operator had been in Head v. Glacier Northwest (9th Cir., 2005) 413 F.3d 1053. There, Mr. Head convinced the appeals court that the ADA could protect him from discrimination since his avoidance of crowds and large family gatherings, and his shutting himself away in his house for weeks – all purportedly the result of a diagnosed “bipolar” mental disorder – constituted a substantial limitation on his major life activity of interacting with others. 413 F.3d at 1060-1061.
Yet, two of the three of the judges in Officer Weaving’s appeal found his situation more akin to another “bipolar”-afflicted employee, this time an electric-guitar assembler in Jacques v. DiMarzio, Inc. (2nd Cir. 2004) 386 F.3d 192. According to the lower court’s record, Ms. Jacques was a “problem employee,” prone to confrontations with co-workers, intolerance of ethnic minorities in the production department, and emotional problems dealing with supervisory staff. Ms. Jacques’s supervisors had found her the “most confrontational person we ever employed,” with supervisors and coworkers regarding her as “intimidating and mercurial” and feeling obliged to treat her with “kid gloves.” 386 F.3d at 197-198.
Taking the cue from the Jacques case, the majority in Weaving found the officer was not eligible for ADA protection for being a cantankerous person with mere trouble getting along with coworkers. In contrast to the plaintiffs in the McAlindin and Head cases, Officer Weaving did not shut himself away, unable at times to interact with others at all. While able to engage in normal social interactions, “his interpersonal problems existed almost exclusively in his interactions with his peers and subordinates.” Weaving at page 17. “One who is able to communicate with others, though his communications may at times be offensive, ‘inappropriate, ineffective, or unsuccessful,’ is not substantially limited in his ability to interact with others within the meaning of the ADA. To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.” Weaving at page 18.
Circuit Judge Callahan, the third judge in Weaving, disagreed sharply with the other two. Citing the report of the treating psychologist, she emphasized that Officer Weaving was apparently unable to “self-regulate” certain symptoms of his supposed ADHD condition, including impulsiveness, “not seeming to listen when spoken to, … interrupting others, … difficulty waiting his turn, blurting out comments without having emotional intelligence, [and lack of] awareness of the effect that that communication would have on his other workers at the police department.” Weaving at page 23. Judge Callahan thus contended that Officer Weaving “was well beyond being merely cantankerous or troublesome. To the contrary, he had problems in his interactions with just about everyone throughout his career in law enforcement.” Judge Callahan thus reasoned that Weaving was substantially limited in his ability to interact with others and was not just a cranky, defiant bully undeserving of ADA protection. Weaving at page 32.
The Weaving decision demonstrates the highly subjective element that can drive the discussion on what is and what is not a protectable mental disability under the ADA. In the face of disruptive conduct as displayed by Officer Weaving, management must base any disciplinary decisions on the observable and documented negative effects that such angry, demeaning and bullying behavior has on the morale and productivity of the workers on the receiving end of such conduct. Job descriptions that establish the abilities to engage in effective, constructive communication and to work in efficient coordination with supervisors, coworkers and juniors will also promote the proper objective expectations for a worker at every company position.
For further information and assistance on workplace disability issues, contact any of our office’s attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
“Disability and Leave of Absence Policies, Keeping Up with Changing Employment Laws”
“Cigarette girl” – April 5, 1947
Given the widespread popularity of electronic cigarettes, more cities and states are passing legislation to address their use in the workplace. Electronic cigarettes, or e-cigarettes, are battery-powered and tobacco free. They vaporize a liquid nicotine solution that users inhale and then puff out (i.e., “vaping”). The exhaled water vapor appears similar to traditional tobacco smoke but without the odor.
Three states, New Jersey, North Dakota, and Utah, have enacted bans against e-cigarettes in the workplace. Multiple cities have followed suit, including Seattle, Boston, New York City and Chicago. Surprisingly, California, usually in the forefront of such legislation, has yet to expand its workplace smoking bans to encompass e-cigarettes. Absent a state-wide ban, some California counties and cities have prohibited e-cigarettes on their own, including Marin County, Santa Clara County, and the City of Los Angeles.
Employers with multi-city or multi-state operations should consider instituting a uniform ban on e-cigarettes to ensure compliance as such prohibitions continue to spread. Even in jurisdictions with no restrictions on workplace vaping, employers may wish to ban the practice outright for several reasons, such as to prevent co-worker and customer complaints and to avoid triggering indoor smoke detectors. Some employees have reportedly misused e-cigarettes or “vape pens” to smoke marijuana in their workplaces. That practice may be difficult to detect because the vapor does not have a discernible odor.
Where lawful, some employers view vaping as a means to increase productivity and decrease absenteeism since such users need not leave the building for multiple cigarette breaks beyond the minimum required rest periods. If an employer permits vaping, however, it should explicitly ban marijuana or other drug use in vape pens and reserve the right to inspect such devices for such illicit substances.
For assistance creating complete and comprehensive workplace policies, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
The Westminster hymnal the only collection authorized by the hierarchy of England and Wales (1912)
Copyright infringement has two sides: a) protecting your own copyrighted material and b) avoiding violations of another’s copyrighted work.
The U.S. Copyright Act, section 106, gives a copyright owner exclusive rights to the control of an original work, including reproducing it, publicly displaying it, publicly performing it, making derivative works, and selling, leasing or licensing it to others. Infringement occurs when someone uses another’s work or part of it in these and other ways without the owner’s permission.
To prove copyright infringement, in the simplest terms, the owner must show that he or she owns the copyright to the work in question and that the infringing item is a copy of the original. Copy does not necessarily mean an exact duplicate. The owner can prove this element by showing that the “copy” is substantially similar to the owner’s original and that the infringer had access to the original. If the alleged infringer came up with the same idea independently and created a similar work without any access to that original, there may not be an infringement.
Sometimes the analysis is simple. For example, if you wrote a book, another’s publication of the identical text under a different name and cover would clearly be copyright infringement. Unauthorized use of another’s original photo for the cover of a music album or a secret video recording from the audience of a first run movie for production of pirated DVDs are also examples.
The situation may be less than clear-cut if, for instance, you and another happen to each write original music which sounds similar for a few notes or bars. Two individuals painting the same landscape with similarities in treatment may also be possible trouble, but then again, may not. For some real-life close-calls, see the blog “5 famous copyright infringement cases (and what you can learn).”
The livelihoods of copyright lawyers depend on accurately analyzing such scenarios. However, while an experienced practitioner can and will offer his or her perception of whether similar works present a potential infringement, experts inevitably will differ in more complex cases.
If is of course far preferable to consult a copyright attorney over potential infringements before any “cease and desist” letter or, worse, a lawsuit arises from another copyright holder. If you need help with such issues, you can contact our Of Counsel attorney, Helena Kobrin.
Related articles: The Annals of Copyright Number 1, When in Doubt, Choose Contract Over Lunch (on the importance of written agreements for the use of copyrighted material) and The Annals of Copyright Number 2, You May Have a Copyrighted Work and Don’t Know It (on the definition of a copyrighted work).
Journalist Lucy Morgan with video camera and phone – ca. 1985
The California Court of Appeal has ruled in favor of employee Colin Cochran on his class action lawsuit on behalf of 1,500 customer service managers against Schwan Home Service for reimbursement for work-related use of personal cell phones. Cochran v. Schwan’s Home Service, Inc. (August 12, 2014). Cochran alleged the company violated California Labor Code Section 2802, which provides:
“An employer shall indemnify [reimburse] his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer….”
Schwan’s Home Service had convinced the trial judge that class members had no claim for reimbursement under section 2802 if the workers had plans for their personal phones providing unlimited minutes for a flat rate or if someone other than the employee paid the bill. (In Mr. Cochran’s particular case, it was unclear whether he or his girl friend had actually paid the bill.)
The Court of Appeal disagreed, ruling that an employer must reimburse the reasonable expense of the mandatory use of a personal cell phone regardless of whether the employee actually incurred extra expense for such calls or not: “To show liability under section 2802, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed.” Cochran at page 8. Otherwise, the court reasoned, the employer would receive a windfall from passing its operating expenses onto the employee. Id. at page 7.
Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill for all types of cell phone plans and even if someone else pays the bill. Id at page 7. The court did not discuss how to calculate that percentage.
California employers should promptly consult with competent legal counsel regarding their reimbursement obligations. For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin.
Richard and Cherry Kearton taking a photograph of a bird’s nest, 1900
If you have ever written a story, poem, novel, essay, research paper, or song, taken a photograph or video, performed music, or been in a play or a film, you were at some point a copyright owner. However, you may not still own those rights if you have sold, assigned or otherwise given those rights away. Loss of rights might be by a formal agreement, for example through an entertainment, publishing or music industry contract, or by some other means. If you were an employee in the U.S. when you made your creation, your employer owns the copyrights, based on U.S. law and the concept of “work-made-for-hire.”
A copyright is an owner’s exclusive right to do certain things with an original work and to prevent others from doing so without permission. For example, under U.S. law, the owner is entitled to protect an original work from being copied by others in whole or in part, whether by photocopy or by audio or video copy. Copyright also protects the right to publicly perform or display an original work, to make derivative works from it, and to sell, lease or license copies of it to others. Copyright protects your tangible, specific expressions of your creation, but not the idea or concept behind it.
If you – or one of your employees while on the job – create a written work, sound recording, musical composition, graphic design, architectural plan, photograph, or many other creative works, that creation is copyrighted even if you never take any action to protect it legally.
Nevertheless, there are good reasons why you should protect your copyrighted works by registering them with the U.S. Copyright Office. Registration carries the right to file suit if an infringement occurs, as well as the rights to collect so-called “statutory damages,” set amounts that do not require proof of actual money loss, as well as attorney fees. Especially if you publish or broadcast your copyrighted work in a manner that it could easily be infringed, it is better to file for a registration early on than to have to scramble to register after an infringement occurs, incurring higher expedite fees in the process and missing out on some of the remedies available to a registered copyright owner.
There is of course much more to the process. If you need help with your copyrights, please contact our Of Counsel attorney, Helena Kobrin.