BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
June 1999 issue:
By Andrea Johnstone and Anne Scheer*
Is Attendance an Essential Job Function?
In its recently released guidelines on reasonable accommodations, the Equal Employment Opportunity Commission (EEOC) states job attendance is not an essential function of the job.
The EEOC further defends it has not gone "berserk" in issuing this guideline. According to the Commission, the guideline is not intended to mean attendance doesn't matter. Rather, the EEOC states that an essential function of a job is a required ability or activity that cannot be modified by reasonable accommodation. The EEOC believes attendance is instead a "job qualification" subject to reasonable accommodation. The EEOC does state an employer does not have to tolerate unpredictable, frequent and ongoing late arrivals and chronic tardiness. If an employee asserts that absenteeism is the result of a disability, the parties should discuss whether reasonable accommodation can be made, such as a modified schedule, subject, of course, to whether it would cause the employer undue hardship. This regulation is contrary to most federal court decisions on this issue.
Since most employers consider job attendance an essential function of the job, look for heavy litigation on this issue.
Essential Night Shift
In Laurin v. Providence Hospital, the First Circuit Court of Appeals ruled that off-hours shift coverage was an essential job function of a nurse who worked in a 24-hour-a-day maternity ward, and that the employer need not accommodate her disability by foregoing an essential element of the job. In this case, the hospital had refused the nurse's request not to work the night shift even though her doctor had certified a seizure disorder prevented her from safely working odd hours. The disorder had caused her to black-out one night while driving home from work.
The Court compared this to a situation where a school guidance counselor must work during the school day or a night watchman must work at night. The Court stated that in some instances a time-of-day requirement can be a non-waivable, essential job function. The Court noted, however, the special circumstances of a hospital environment and the fact the employer had never made any exceptions to its requirement that non-senior nurses work off-hours.
Second Leave is Reasonable
Allowing a disabled employee a one month leave of absence does not absolve an employer from its duty to accommodate her with another leave, especially where the second leave is not expected to be prolonged. In Criado v. IBM, the First Circuit Court of Appeals held that a rational jury could have found the extra leave requested was a reasonable accomodation of a temporary disability. The employee's physician stated that the extra time would let him design an effective treatment program for her. The Court held that the Company's policy of allowing employees up to 2 weeks of paid disability leave prevents it from asserting this particular absence would unduly burden its operations.
Sexy Voice Qualifier
The Seventh Circuit ruled that frequent personal telephone calls from a college chancellor to a female subordinate did not constitute sexual harassment, even if the chancellor sometimes spoke in a "sexy" voice.
In the matter of Minor v. Ivy Tech. State College, the subordinate alleged the chancellor called her almost daily to discuss matters unrelated to her work. She conceded there were no explicit sexual discussions during the calls. On a later occasion, the chancellor embraced her, kissed her and asked, "Is this sexual harassment?" The Court held that these incidents were not sufficient to create a hostile environment, particularly since the later incident seemed to be "humorously rather than erotically intended."
The Court noted concern about "the legal risk that would be placed on employers if a plaintiff in a sexual harassment case could get to a jury on the basis of nebulous impressions concerning tone of voice, body language and other non-verbal, non-touching modes of signaling," since such judgments are inherently subjective.
Commissions... Again
The New Hampshire Supreme Court in the matter of Galloway v. Chicago-Soft Limited, held that "as a general rule, a person employed on a commission basis to solicit sales orders is entitled to his commission when the orders are accepted by his employer. The entitlement to commission is not affected by the fact payment of these orders may be delayed until after they have been shipped. This general rule may be altered by a written agreement by the parties or by the conduct of the parties, which clearly demonstrates a different compensation scheme."
Following this decision, the New Hampshire Department of Labor has taken a hard line on non-payment of commissions. Often, employers attempt to limit commissions to sales on which actual payments are received by the employer and/or attempt to end commission payments contemporaneous with termination from employment. Since either of these are a "deviation" from what the New Hampshire Supreme Court has said is the general rule (paying commissions bassed on accpetance of order by an employer), any deviation from this payment scheme must be explicitly clear and should be in writing. Expect that even what you think is very clear policy, if different from the norm, will be highly scrutinized by the Department of Labor. If your policy can be found to be in any way ambiguous, it will probably be ruled not clear.
Copyright 1999. This article originally appeared in BIA Update, June 1999.
* Anne Scheer is admitted in New Hampshire.
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