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How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee’s job open?  What medical evidence is needed?   How much interactive dialogue is enough?  What about an employee is who is unreasonable and/or demanding?

A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).

Gary Brunckhorst worked for the City of Oak Park, Minnesota for more than 15 years.     As the Senior Accountant for the City, Brunckhorst was responsible for payroll and certain IT functions.  But, because the city had only 21 employees, he also carried out back-up duties for accounts payable and utility billing, assisted it he front office answering phones, and covered for other employees during their lunch breaks.  By all accounts he seemed to be a model employee.

Unfortunately, in April 2014, Brunckhorst contracted a debilitating illness that changed his life in many ways, including the relationship with his employer.   The disease is called Fournier’s gangrenous necrotizing fasciitis, which the court described as a form of “flesh eating” bacteria.  Brunckhorst had to have three surgeries to save his life, and he spent five months in the hospital or a nursing care facility before finally returning home in September 2014.

Brunckhorst’s medical condition and resulting convalescence naturally resulted in him missing a substantial amount of work.   His first 12 weeks of absence was covered by FMLA.    Once FMLA leave was exhausted, the City had an ordinance that allowed an employee to take up to 90 days of continuous leave without pay for a serious health condition. Brunckhorst used up the 90 days, but was still not released to return to work.  The City extended Brunckhorst’s leave two more times because his doctor kept moving back the date when he would be capable of returning.

In the meantime, as is sometimes the case with small employers dealing with a long-term employee absence whose return date is uncertain, the City Administrator found that the Senior Accountant position was not really needed. In Brunckhorst’ s absence, his duties were distributed to other employees, who were able to absorb them on a permanent basis. As a result, The City Council decided to eliminate Brunckhorst’ s position.  That is, of course, when the troubles started.

The City tried to give Brunckhorst a soft landing when his position was eliminated by offering one of two alternatives: 1) a severance package;  2) a different job as the Utility Billing Clerk/ Accounting Technician, but it had a salary 30 percent lower than the Senior Accountant salary.

Brunckhorst rejected either alternative, instead demanding that he be returned to his old position.  He remained on leave while the City tried to negotiate a return to work in the new position, with reasonable accommodations.     Brunckhorst, through his attorney, remained insistent that the City had to return him to his old position, and also demanded a gradual return to work starting at four hours per day, working from home.   Consistent with Brunckhorst’s medical restrictions, the City agreed to four hours per day for a certain period of time, but required him to work at City Hall.   Brunckhorst and his attorney then demanded meetings with the Mayor and a City Council member to discuss these issues.   The City refused that meeting with elected officials, but City staff offered to meet with him.  Eventually, the City gave Brunckhorst a hard deadline by which he would have to return or be terminated.   The City even extended the hard deadline, but finally, on April 29, 2015, the City Council voted unanimously to terminate him.

In his lawsuit against the City, Brunckhorst alleged, among other things, that the City engaged in disability discrimination when it eliminated his position; that it failed to engaged in an interactive dialogue, and failed to reasonably accommodate his disability. The district court granted the City’s motion for summary judgment, and the Court of Appeals affirmed.

The Court of Appeals’ opinion contains several useful nuggets that should help employers navigate many of the challenging questions presented in connection with a request for extended leave:

  1. Does an employer have to hold the absent employee’s position open?  No; an employer’s right to return to the same or substantially similar job ends when FMLA leave expires and the employee does not return to work.  It is not a reasonable accommodation to hold open a position if the employer determines the position is no longer needed.
  2. What about the EEOC Enforcement Guidance that holds an employer is required to hold a position open absent undue hardship?  The Court rejected the EEOC’s position, stating that, “the EEOC document is not…binding authority.”
  3. What kind of medical information is needed? If possible, rely upon, and comply with, the restrictions imposed by the treating physician.   Sometimes there may be a need to follow-up with the physician to clarify the nature and extent of limitations, or to provide more information about the job.   While it may be necessary in some circumstances to obtain another medical opinion, an employer should have a good reason for concluding the treating physician cannot be relied upon.
  4. What if the employee on leave wants to work from home? While such an accommodation might be reasonable in some circumstances, if the employee’s limitations still allow him to come to at the workplace, and the job description  requires the employee to come to work, it is not unreasonable to refuse a request to work from home.  Brunckhorst wanted to work from home because it “would have been easier,” but the Court ruled the employer is not required to accommodate an employee based upon the employee’s preference.
  5. How much interactive dialogue is enough?   Patience is a virtue here.  In concluding that no reasonable jury could conclude the City failed to participate in the interactive process, the Court in Brunckhorst pointed favorably to the fact that the City “extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions.”
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This is a question about which Iowa employers are increasingly concerned.  The probability your employees and applicants for employment have used marijuana in some form has substantially increased in recent years.    Medical marijuana use is now legal in 34 states and the District of Columbia.  Recreational use is legal in ten states.    But, marijuana is still classified as a “Schedule I” drug under the Federal Controlled Substances Act, making it illegal to possess, use, or sell.  The very fact that marijuana is classified as a Schedule I drug means the Food and Drug Administration has determined it has no currently accepted medical use, a lack of accepted safety for use under medical supervision, and a high potential for abuse.

Enacted in 2017 and effective in 2018, Iowa’s medical marijuana law permits persons with certain debilitating medical conditions to use medical cannabidiol (the chemical from the cannabis plant). Medical conditions covered by the law include cancer or other terminal diseases if they result in severe or chronic pain, nausea or severe vomiting, or severe wasting; multiple sclerosis s with severe and persistent muscle spasms;  seizures, including seizures related to epilepsy, AIDS or HIV, Chrohn’s disease, ALS (Lou Gehrig’s disease), Parkinson’s, and pain that is “untreatable.” The person who uses medical marijuana must obtain a “medical cannabidiol registration card”, which requires  a physician to certify the person has one of the qualifying medical conditions.  A patient with a medical marijuana registration card cannot be prosecuted for use or possession; the law also protects the primary caregiver of the patient from prosecution for possession of marijuana.

How does this law impact Iowa employers who have a drug-free workplace policy? Iowa’s drug testing law permits employers to test applicants and employees for marijuana; if the test is positive the employer may lawfully refuse to hire the applicant or may terminate the employee.   An Employer may also lawfully prohibit the possession and use of marijuana on its premises.   But, in light of the medical cannabis law, can an employer lawfully take adverse action against a person who fails a drug test because of his or use of medical marijuana?

The short answer is, it’s too soon to tell.   On one hand, there is nothing in the medical cannabis law that protects an employee or applicant from adverse action because of positive marijuana drug test.  The drug testing law also specifically provides that an employee or applicant with a confirmed positive drug test is not, by virtue of the test result alone, considered a person with a disability for purposes of state or local law. Moreover, the fact that marijuana possession and use remains illegal under federal law because of its potential to cause harm should support an employer’s right to test for marijuana and act on a positive test.

On the other hand, there are also reasons for employers to be concerned.   First, just because a positive drug screen does not qualify as a disability under Iowa law does not mean it won’t under the federal Americans with Disabilities Act (ADA).   The debilitating diseases that qualify a person to use medical marijuana in Iowa probably qualify as disabilities under federal law.   In addition, the Iowa legislature through this law has obviously expressed  that use of approved medical marijuana in certain circumstances is the public policy of the State.  To terminate an employee who tests positive but complies with the medical marijuana law could support a common law wrongful discharge claim.

Cases from other states have come down on both sides.   A 2015 decision of the Colorado Supreme Court held that an employer has the right to fire an employee who tested positive for marijuana used for medical purposes.  This decision is from a state where even recreational use is legal; but the Colorado Court ruled that, because marijuana use remains illegal under federal law, the employer could not be sued.   A more recent case from a federal court in Delaware had a different result; despite the prohibition in the Federal Controlled Substances Act, the court ruled a terminated employee could sue under a Delaware statute that prohibited discrimination in employment against persons who used marijuana for medical reasons.  While these cases may provide some guidance, because each state’s law is different, decisions from other states may or may not be useful as precedent in dispute about Iowa’s law.

What can you do to maintain a drug-free workplace policy while at the same time protecting yourself from employee lawsuits? Here are a few action items:

  • If an employee or applicant with a valid medical cannabidiol registration card tests positive for marijuana, pause before taking any action.   You should engage in the interactive process with that employee to find out whether the condition for which the employee takes medical marijuana may qualify as a disability under the law. If it does, consider whether waiving the drug free workplace policy is a reasonable accommodation.
  • If the job involves a safety sensitive position, you should have more leeway to take action with a positive test result; in that case, waiving the policy may not be reasonable.   Revise job descriptions to ensure safety sensitive positions are clearly identified.
  • Continue to act in cases where there is evidence of intoxication or impairment.   Just because someone has a license to use medical marijuana does not give them the right to be impaired at work.   But, it is important to note that, unlike with alcohol impairment, there is no test to determine when a person is legally impaired by marijuana use.
  • Train supervisors on how to handle questions, perceived violations, and testing.
  • Train HR personnel to have a sound understanding of drug testing procedures, including interpretation of test results; HR needs to learn to avoid knee-jerk reactions to a positive marijuana drug test.
  • For unionized employers, make sure your drug testing policy is part of the collective bargaining agreement; try to have as much discretion as possible in modifying and administering the policy.
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In 1990 Congress enacted the Older Workers Benefit Protection Act (OWBPA) out of concern that employees terminated  as part of a Reduction in Force (RIF) did not fully understand the rights they were giving up in exchange for the payment of severance benefits.   Under OWBPA, a severance agreement entered into with a terminated employee over age 40 is not valid unless the agreement contains certain provisions.   Among other things, the release is supposed to be written in easy to understand language rather than legal jargon; it must advise the employee to seek advice from an attorney; it must allows the employee adequate time to consider whether to sign the release (21 to 45 days, depending upon how many employees are part of the RIF); and, in the event the employee changes his mind after signing, the employee has seven days to revoke the agreement.  If the release does not comply in every respect, it is not valid, and an employee who signed and accepted the severance payments may still sue for age discrimination under the federal Age Discrimination is Employment Act (ADEA).   An employee who sues may not even  have to return the money received as part of the severance agreement.

A recent ruling from a federal court in Pennsylvania (Ray v. AT&T, Inc., No. 18-3303, E.D. Pa, 1/11/2019 ) is an example of just such a worst case scenario: an employee who signed a release and accepted severance in a RIF was still able to sue for age discrimination.   The court found the severance agreement was not valid under OWPBA because it did not provide enough meaningful information about the RIF to allow the employee to make an informed decision whether to release her right to sue.

In 2017 AT&T launched a RIF of management level employees in its Mobility Retail Sales and Services, East Region. The Plaintiff, Alison, Ray, was a Director of Sales who oversaw various retail locations in Southeastern Pennsylvania.   Ray’s territory was in the Ohio/Pennsylvania market, which was part of the East Region. Ray’s position was eliminated as part of an effort to reduce layers of management and increase operational efficiencies.

In addition to the provisions described above, a valid OWBPA release involving two or more employees must provide information to the terminated employees about the “decisional unit” from which they were selected.   That means the employer discloses the organizational unit that is included in the RIF; which could mean a particular location, department, or other group of employees. For each decisional unit, the employer must disclose all of the job titles in the decisional unit, how many persons were selected for termination for each position and how many are retained; and the ages of each.   The purposes of the decisional unit disclosure is to give terminated employees information about the pool from which the RIF was taken and whether there is evidence of age bias in the selection of those terminated.

In Ray’s case, it was AT&T’s description of the decisional unit that resulted in the court invalidating the release. AT&T used the phrase “Affected Work Groups” to describe the decisional units from which the RIF was drawn:

Affected Work Groups (AWG) are comprised of positions at the same level with similar definable characteristics from which the surplus employees are selected. . . . The combined AWGs comprise the Decisional Unit for this business case.

The court found this definition of the decisional unit “vague and circuitous”, and that it failed to provide “the average employee with any meaningful information as to how the process of identifying those includes in the reduction in force was conducted.” Most critical to the ruling was the court’s finding that AT&T’s decisional units did not appear to be actual divisions or departments in the company, but were created solely for purposes of the required RIF disclosures.   According to the court’s ruling, the terminated employees were entitled to know the job titles and ages of every employee terminated and retained in the Mobility Retail Sales and Services, East Region. What they actually got were ages and job titles of those employees selected and not selected within a certain groups within Mobility Retail Sales and Services, East Region that AT&T determined would be impacted by the reduction. What was missing, according to the court, was clarity about how the Affected Work Groups related to actual parts of the organization from which they were drawn.

It is difficult to determine from the ruling in Ray whether the lack of clarity in the release was merely the result of lawyers over-drafting; or, if it the employer intended to obscure the statistics of the RIF because it had a disproportionate impact on employees over 40.  The court suggested, but did not decide, it might be the latter.   Regardless, an important lesson is that clarity in describing a “decisional unit” is best achieved by relying upon the actual organizational units within the company.  Developing decisional units for purposes of the RIF is more likely to raise a red flag with savvy plaintiff’s attorneys and courts.

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Although many employers use progressive discipline policies, I am typically not a big fan.   In theory progressive discipline seems like a good idea:  it allows an employee to learn from their mistakes.  It puts the employee on notice that further discipline is going to have more serious consequences.    It is difficult for an employee who has gone through the steps to claim surprise when the termination arrives.

On the other hand, progressive discipline limits an employer’s flexibility.   Sometimes it is clear an employee isn’t working out, but the company feels bound to go through the steps before terminating.   In other cases, the circumstances may warrant giving an employee more chances that the policy allows.  In those situations, an employee may be terminated simply because they are on the last step, even though the company would rather keep the employee.

Of course, progressive discipline policies almost always have an “out.”   That is, the company reserves the right to skip one or more steps in the process, or not use it at all.   But, if the policy has an “out” which gives managers virtually unlimited discretion to avoid it, what is the point of having the policy?   Plus, the more discretion allow in applying the discipline policy, the greater the probability for inconsistent application.

Although I remain a skeptic, I have to admit that sometimes a progressive discipline might be decisive in defeating a discrimination claim, like it was in a recent case from the Eighth Circuit.   The plaintiff in Lindeman v. St. Luke’s Hospital of Kansas City worked for the hospital for eight, mostly uneventful years.  But, between January and April 2014, he quickly progressed through the hospital’s progressive discipline, ultimately ending with his termination.

St. Luke’s progressive discipline policy was typical of most: a first offense resulted in a verbal warning; second offense a written warning; third, a suspension or second written warning, and fourth termination.

The plaintiff received a verbal warning on January 1, 2014 when he became argumentative when receiving coaching from a supervisor.    Later in January he received a written warning for failing to comply with the hospital’s timecard and call-in procedures.   In February, the plaintiff was suspended when he failed to call in prior to missing a scheduled shift.   Finally, in April 2014, plaintiff was terminated when he violated the hospital’s confidentiality policies by mentioning the name of a patient to others inside and outside the hospital.

Plaintiff alleged his termination was motivated by several disabilities-obsessive compulsive disorder, attention deficit disorder, bi-polar disorder, and a number of physical limitations.    Plaintiff relied upon two pieces of evidence to prove the hospital’s stated reason for the termination was pretext for disability discrimination.   First, he claimed other employees disclosed patient names and were not disciplined.  Second, his eight year history of strong performance reviews followed by a quick progression through the discipline policy after he was assigned to new supervisors.

In many cases, evidence that similar offenses of other employees were treated more leniently generates a factual dispute sufficient to defeat summary judgment.  In this case, however, the hospital persuaded the court the other employees were not adequate comparators because they were not on the final stage of progressive discipline at the time of their offenses.  The court also found other reasons the comparators were not adequate, but the different places the other employees fell on the progressive discipline scale was a decisive fact.

The key takeaway:  employees at different stages of the progressive discipline policy can be treated differently, even for a similar offense.   So long as the evidence shows the employer consistently applies progressive discipline to all employees, it may provide the ticket to defeating a claim of discrimination.

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Publisher’s Note:  Today’s guest post is provided by Brandon Underwood, one of my colleagues at Fredrikson & Byron, P.A.   Hopefully Brandon will catch the blogging bug and continue to post….

The Americans with Disabilities Act (ADA) forbids medical examinations and inquiries in employment.  But not all of them.  Instead, an examination or inquiry’s permissibility, and scope, turns primarily on when it occurs.  Too early, and the examination violates the ADA.  Too late, and it may as well.

Correctly identifying a person’s spot on this timeline ordinarily isn’t too difficult.  Has she, for instance, been offered a job?  But the difficulty ratchets up when one company merges with another and will absorb its employees.  How to treat these incoming employees?  In Hustvet v. Allina Health System, No. 17-2963 (8th Cir. filed Dec. 7, 2018), the Eighth Circuit suggested the ADA allows these employees at least in some cases to be given an “entrance examination.”

Hustvet had worked at Courage Center for about 15 years, helping patients with fragile immune systems.  In 2013, as part of a merger, Allina offered employment to all Courage Center employees meeting Allina’s employment conditions, including a health assessment screen.  Hustvet completed the screen but ignored a respirator form and stated she was unaware if she was immunized for rubella.  Testing later confirmed she was not.

After the merger, Allina instructed Hustvet to submit a completed respirator form and develop rubella immunity by taking the MMR vaccine.  Hustvet refused, and Allina terminated her employment.  Hustvet sued, alleging the health screen violated the ADA (and the counterpart Minnesota law).

She first contended the screen was impermissible because Allina required it too early:  before the job offer.  The ADA forbids an employer to require a medical examination before offering employment.  Alternatively, Hustvet insisted she was a “continuous” employee of the Courage Center and Allina and thus the screen was required too late:  after she was employed.  As to current employees, the ADA forbids medical examinations unless they are job-related and necessary to the employer’s business.

Allina argued the health screen was permissible as a condition of employment, enforced after the Allina job offer but before Hustvet began at Allina.  After offering employment, an employer may require a medical examination and condition a final offer on the examination’s results—this is an “entrance examination.”  An entrance examination need not be job-related or necessary, but it must be given to all employees regardless of disability.

In Hustvet, the Eighth Circuit was “inclined to” find the screen was a permissible entrance exam.  Hustvet received a letter confirming she would “soon be” an employee of Allina on the merger date, if she met the health screen requirements.  The letter clarified the screen needed to be completed before her employment with Allina began, suggesting the offer was conditional.  As a result, the court reasoned, it was immaterial that Hustvet was terminated after the merger, when Allina discovered she hadn’t completed the screen.  In the end, however, the court dodged this question, finding the screen permissible even assuming Hustvet was a current Allina employee.

Still, the ruling signals the Eighth Circuit’s willingness to apply the “less strict” entrance-examination requirements to employees absorbed in merger.  Dismissing Hustvet’s contention, the court didn’t presume she was a current employee of Allina because she’d worked for Courage Center.  The facts, in other words, will determine an employee’s status.

For now, Hustvet reminds us that the ADA forbids a medical examination of a current employee unless it’s related to the employee’s job and necessary to the business.  The Eighth Circuit had little difficulty concluding that screening an entire class of health care workers—all employees, like Hustvet, with client contact who merged into Allina—for communicable diseases was job-related and necessary.  After all, testing would reveal whether they risked spreading the disease to patients.

But if the same screen were required of, say, lawyers, the result may be different.  And in that case the Eighth Circuit would need to address the question it left expressly unresolved in Hustvet.

Image Credits: From Google; Creative Commons license

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In the last two sessions, the Iowa legislature has amended Iowa’s private sector drug testing law to give employers additional tools to combat employee substance abuse.   In last year’s session, the legislature amended the law to allow employers to use hair follicle testing for pre-employment drug screens.  Prior to the amendment, the law allowed only testing using urine, blood, or oral fluid.

In the 2018 session, the legislature again amended the law to lower the threshold at which an employer may take action based upon an employee’s positive alcohol test.    Effective July 1, an employer may take action if the employee has a blood alcohol concentration of at least .02% .  The existing standard is .04%.

The amendment allowing hair follicle testing is important because testing hair follicles is a more effective in detecting long term drug use than is testing of bodily fluids.   Many drugs are not detectable in urine 72 hours after using the drug, where the hair follicle testing can detect drug use for up to 90 days.     Using the hair follicle test for pre-employment testing will allow employers to screen out potential employees who may be longer term drug users but in the past were able to avoid detection by not using a few days before the drug test.

The lower BAC threshold in the 2018 amendment allows employers to enforce more readily a “no tolerance” policy on alcohol related impairment.  For many people, it takes only one drink to reach the .02 threshold, where it may take 2 or more to reach .04.

Even with these new employer friendly amendments, the Iowa drug testing law remains one of the most difficult laws in the country to administer because of its detailed procedures and employee safeguards.   Discipline or termination of an employee for a positive drug or alcohol test, without strict compliance with these procedural safeguards, presents a significant litigation risk.

The statutory remedies for violating the law include reinstatement (or hiring if the person is an applicant subject to a pre-employment screen), back pay, and attorney’s fees.   In one case, the employer was found to have violated the notice provisions of the law when it hand-delivered the results of the drug test to the employee instead of sending in by certified mail.   The court also ruled the employer did not have authority to conduct a drug test as part of the employee’s doctor visit to treat for work related carpal tunnel syndrome, because the injury did not occur as the result of an “accident.”   The employee was awarded $22,805 in back pay and $13,275 in attorney’s fees.   See Skipton v. S&J Tube, Inc., 822 N.W.2d 122 (Iowa Ct. App. 2012).

Another potential legal claim for violation of the drug testing law is one for wrongful discharge in violation of public policy.  The additional risk of a common law claim based upon violation of the drug testing statute is that a plaintiff has potential remedies over and above those the statute allows, including to damages for emotional distress and punitive damages.   In McVey v. National Organization Service, Inc (Iowa 2005), the Iowa Supreme Court allowed an employee to sue for the employer’s failure to strictly comply with the drug testing law, but did not recognize the claim as a public policy claim, which limited the remedies to those in the statute.    However, a trial court in Delaware County recently allowed a public policy claim based upon violation of the drug testing law.  The employer in that case admitted it did not strictly comply with the drug testing law in connection with an employee termination, but contended the employee was limited to statutory remedies.    The trial court not only disagreed with the employer’s position, but granted the plaintiff summary judgment based upon the employer’s admission it violated the statute.   The jury award was not significant in the grand scheme of things ($57,000 economic damages, $12,000 emotional distress).  But, this ruling nonetheless highlights that the employer benefits that came with the legislature’s amendments do not eliminate legal risks for failure to strictly comply with the law.

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In the recent case of Jahnke v. Deere & Co. (May 18, 2018), the Iowa Supreme Court ruled that a Deere employee who was repatriated to the United States as discipline for engaging in sexual misconduct while on assignment at a Deere factory in China did not state a claim for discrimination under the Iowa Civil Rights Act (ICRA)

Jahnke sued Deere in Iowa State Court, alleging the decision to repatriate him from China to a lower paying job in Waterloo, Iowa was based on his age, sex, and national origin.    While on assignment as the manager of a Deere factory in China, Jahnke engaged in sexual relationships with two younger, Chinese women who were in his “span of control”, which violated Deere’s policies.   Jahnke claimed Deere violated the Iowa Civil Rights Act because his discipline was harsher than that imposed on the female employees with whom he had the relationships.

The trial court denied Deere’s motion for summary judgment, but the Iowa Supreme Court granted Deere’s application for interlocutory appeal to address two issues.  First, whether the ICRA has extra-territorial application.  Second, whether the geographic reach of the ICRA extends to a U.S. Citizen working abroad where the employer has a presence in Iowa but the alleged discrimination occurred in the foreign country.

The Iowa Supreme Court answered the first question “no”, the ICRA does not apply to acts of discrimination that occur outside of Iowa.   There is a presumption in the law that a statute does not apply extraterritorially, unless the legislature expressly intends otherwise.   The Court found nothing in the language of the ICRA indicating the legislature intended it to extend to acts that occur outside of Iowa.

Even though the ICRA does not apply to discriminatory acts in other states or foreign countries, Jahnke claimed it nonetheless applied to his claims because he was an Iowan working on temporary assignment in China, who was discriminated against by Iowans who made their discriminatory decisions in Iowa.

It was true that Jahnke and Deere both had connections in Iowa.   Jahnke’s last assignment in the United States before moving to China was at Deere’s Ankeny plant.    When repatriated he was assigned to a factory in Waterloo, Iowa.    But, when he assigned to manage the Chinese factory, all of the decisions concerning Jahnke’s employment were made in China, or from Deere’s world headquarters in Moline, Illinois.     The compliance committee that investigated Jahnke’s misconduct was based in China, and personnel in China made the recommendation that Jahnke be repatriated to the U.S.     Two Deere mangers were charged with communicating the decision to Jahnke and executing his return to the U.S.  Both of them lived in Iowa, but worked at Deere’s Moline headquarters, across the river in Illinois.

The Court found that the focus of Jahnke’s employment relationship while on assignment in China was in China, or perhaps Illinois.  There was no evidence of discrete employment actions that occurred in Iowa.  The Court was not persuaded that Jahnke’s occasional trips back to Iowa for work purposes, Deere’s substantial operations in Iowa, or that the Iowa residence of the two Deere managers involved in returning Jahnke to the U.S, was sufficient to provide ICRA coverage.

The Jahnke decision is important to Iowa employers that have employees in foreign countries and other states.    Just because an employer has an Iowa presence does not necessarily allow an employee based somewhere else to sue in Iowa courts claiming protection under the Iowa civil Rights Act.    Such an employee may have claims under federal law, but federal law and federal court is generally a more favorable to employers than is an Iowa Civil Rights Act claim in state court.

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It is a truism that employers prefer to win discrimination cases on summary judgment rather than go to trial.    In most cases, winning on summary judgment means convincing the judge there is not enough evidence that would allow the plaintiff to prove “pretext.”   (Pretext: “a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.” Merriam-Webster Online Dictionary).    With pretext, the plaintiff goes to trial; without pretext, the plaintiff goes home and the employer wins.

By the time the case gets to the “pretext” stage, the employee has produced enough evidence to create a presumption the employment decision was discriminatory.   The employer in turn has presented enough evidence to rebut the presumption, by providing one or more reasons for the employment decision that are legitimate, and not based upon discrimination.  That’s when the pretext question arises:  is the employer’s stated reason(s) for employment decision the real reason(s) or is it “pretext” for unlawful discrimination?

Courts have identified a number of ways in which a plaintiff can prove pretext.   One common way is to show the employer has been inconsistent over time in the reasons given for the termination.    For example, at the time of termination, the employer tells the employee the decision is based upon the employee’s negative interactions with co-workers and failure to support the company.   Later, after the lawsuit is filed, the employer claims poor performance and customer complaints were additional reasons.   An employer’s shifting reasons often means summary judgment denied.

A recent case from the Eighth Circuit, however, shows that coming up with new reasons for the employment decision after the fact will not always mean the employer loses on summary judgment. (Rooney v. Rock-Tenn Converting Co., No. 16-3631, 1/9/2018).  The employer in Rock-Tenn is the exemplar employer described above.  The employer gave two reasons for its action at the time of termination, but came up with two others when it filed its motion for summary judgment.   Even though the employer seemingly was inconsistent in the stated reasons for the termination, the trial court granted summary judgment.

On appeal, the plaintiff claimed the trial court failed to follow the requirements of the pretext framework by relying upon new reasons for the termination not articulated at the time of termination.  The plaintiff argued his obligation was to present evidence the reasons stated at termination were pretext; he should not also be burdened with showing the employer’s new reasons identified in the summary judgment motion were pretext.   Not surprisingly, the plaintiff offered evidence that the original reasons were pretext, but not the new reasons.    The Court of Appeals rejected the plaintiff’s argument, and concluded the plaintiff was mistaken the employer could defeat summary judgment only based upon reasons articulated at the time of the termination.   The Court’s reasoning quoted below will provide summary judgment ammunition the next time an employer identifies additional reasons for a termination during the litigation:

The employer’s burden to articulate non-discriminatory reasons for the an adverse employment action does not arise when the adverse employment action is taken-rather, it is triggered during litigation, when an employee meets his burden of establishing a prima facie case of discrimination.  Title VII does not impose a legal obligation to provide an employee an articulated basis for dismissal at the time of firing, and an employer is certainly no bound as a matter of law to whatever reasons might have been provided. (emphasis added).

Despite the Court’s ruling in Rock-Tenn Converting, it remains the best practice to identify all the reasons for the decision at the time the decision is made.   But, if that does not occur, the Court’s opinion in this case will provide authority to support the argument that an employer’s shifting reasons does not create a genuine dispute that will defeat summary judgment.

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As we have written here many times, summary judgment is an important tool for defendants in employment discrimination cases.   Studies have shown that in federal court, summary judgment is granted to defendants in employment discrimination cases more than in any other type of case.  These studies confirm the experience of most employment lawyers who try cases, whether they represent mostly plaintiffs or mostly defendants.

But, in state court, at least here in Iowa, courts seldom grant summary judgment in employment discrimination cases.   That is the main reason employment lawsuits have migrated from federal to state court during the past decade.  I have attributed the difficulty in obtaining summary judgment in state court to two factors:  First, state court judges, at least in the past, have not been as familiar as federal judges with the laws and procedures governing employment discrimination.  Second, summary judgment motions tend to be fact intensive and legally complex.   State court judges simply do not have the resources, particularly access to law clerks, to engage in the time consuming record review and legal research and analysis that a summary judgment motion requires.

But, there is some recent anecdotal evidence that gives employers a glimmer of hope when considering whether to file for summary judgment when defending a case in state court.   Since the end of September, the Iowa Court of Appeals has issued three opinions affirming district courts’ granting of employers’ motions for summary judgment in employment discrimination cases.  Three cases may be a small sample of all the cases filed.   Nonetheless, it is also possible these cases show state courts are getting more familiar with employment cases and perhaps are more open to summary judgment than they used to be.

The first case is Remick v. Magellan Health (Iowa Ct. App., No. 16-0954, 9/27/2017).  The facts in Remick were fairly complex.  The plaintiff was a social worker who suffered from depression and anxiety.    She worked for the employer for several years with no issues, but then her depression flared up.  The plaintiff took medical leave for several weeks to get treatment, and when she returned perceived that her colleagues were treating her differently.  Plaintiff’s mental condition continued to flare up and she took intermittent FMLA for treatment.    Plaintiff became concerned that her co-workers were angry that she was frequently missing work.  Her supervisor told her to talk to her co-workers about her mental illness and need for ongoing intermittent leave.  The supervisor put Plaintiff in a private office and brought co-workers in one or two at a time so Plaintiff could explain her situation and her need for ongoing, intermittent medical leave.   At least one of Plaintiff’s colleagues became angry because of the increased workload resulting from Plaintiff’s absences.  Plaintiff not surprisingly was humiliated by having to disclose her private medical information to co-workers.   Plaintiff’s mental illness combined with the stress resulting from disclosing her condition workers and negative feedback received from co-workers eventually rendered her unable to perform her daily job functions.  Plaintiff used up her FMLA leave and was ultimately terminated because there was no available accommodation.

The district court granted summary judgment on all three of Plaintiff’s claims:  disability discrimination; retaliation; and disability based harassment.    The disability discrimination claim was dismissed because Plaintiff was not qualified and there was no reasonable accommodation.   Summary judgment was granted on retaliation because the alleged adverse action, transferring plaintiff to another assignment, only lasted one day and was not sufficiently adverse.   The harassment claim was defeated because the employer conducted a prompt investigation and disciplined the supervisor who forced Plaintiff to tell co-workers about her mental illness.

The second and third cases involved the same plaintiff suing two different municipalities for failing to hire him as a fire fighter because he suffered from Multiple Sclerosis (MS) (Deeds v. City of Marion, Iowa Ct. App. No. 16-1666 10/11/2017; Deeds v. City of Cedar Rapids, No. 16-1779, 10/11/2017).    Both cities made Plaintiff a tentative job offer conditioned on satisfactory completion of a medical screening.   Each city sent Plaintiff to a different physician for the medical exam, but with the same result:  both physicians opined Plaintiff was not medically capable of working as a fire fighter.  Neither physician identified the precise medical condition that disqualified Plaintiff in their reports, but both cities withdrew their offers upon receipt of the medical exam results.

Plaintiff claimed both cities discriminated him on the basis of his disability.  The physicians who declared him unfit to serve as a fire fighter relied upon National Fire Protection Association (NFPA) guidelines.   NFPA disqualifies any person with MS who has exhibited symptoms during the past three years.    Plaintiff contended that relying upon NFPA violated the Iowa Civil Rights Act because it did not allow for an individual assessment of his condition.

The cases were heard by different trial court judges, but also with the same result: summary judgment granted.   Judge Doyle wrote both opinions for the Court of Appeals.  He affirmed the summary judgments because neither City required the examining physicians to use the NFPA or any other guideline.  They simply relied upon the examiner’s final opinion that Plaintiff was not medically cleared.

What is the takeaway from these opinions?  One possible conclusion is these cases are evidence of a new trend in state court to grant summary judgment in appropriate cases.  All these cases involved fairly complicated facts that would have made it easy to find a genuine dispute and deny summary judgment.   As more employment cases appear on their docket, state court judges may be scrutinizing them more than in the past.    Another explanation is that the medical evidence in all three cases was clear the plaintiff was not qualified to perform the job.  Perhaps the more appropriate conclusion is that disability cases where the medical evidence shows the employee cannot perform the job’s essential functions are fairly compelling summary judgment candidates.    Regardless of the answer, the potential for winning on summary judgment is an important question for any employer sued for discrimination.  We will continue to monitor these cases to see if we can detect a real trend.

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In the last two sessions, the Iowa legislature has amended Iowa’s private sector drug testing law to give employers additional tools to combat employee substance abuse.   In last year’s session, the legislature amended the law to allow employers to use hair follicle testing for pre-employment drug screens.  Prior to the amendment, the law allowed only testing using urine, blood, or oral fluid.

In the 2018 session, the legislature again amended the law to lower the threshold at which an employer may take action based upon an employee’s positive alcohol test.    Effective July 1, an employer may take action if the employee has a blood alcohol concentration of at least .02% .  The existing standard is .04%.

The amendment allowing hair follicle testing is important because testing hair follicles is a more effective in detecting long term drug use than is testing of bodily fluids.   Many drugs are not detectable in urine 72 hours after using the drug, where the hair follicle testing can detect drug use for up to 90 days.     Using the hair follicle test for pre-employment testing will allow employers to screen out potential employees who may be longer term drug users but in the past were able to avoid detection by not using a few days before the drug test.

The lower BAC threshold in the 2018 amendment allows employers to enforce more readily a “no tolerance” policy on alcohol related impairment.  For many people, it takes only one drink to reach the .02 threshold, where it may take 2 or more to reach .04.

Even with these new employer friendly amendments, the Iowa drug testing law remains one of the most difficult laws in the country to administer because of its detailed procedures and employee safeguards.   Discipline or termination of an employee for a positive drug or alcohol test, without strict compliance with these procedural safeguards, presents a significant litigation risk.

The statutory remedies for violating the law include reinstatement (or hiring if the person is an applicant subject to a pre-employment screen), back pay, and attorney’s fees.   In one case, the employer was found to have violated the notice provisions of the law when it hand-delivered the results of the drug test to the employee instead of sending in by certified mail.   The court also ruled the employer did not have authority to conduct a drug test as part of the employee’s doctor visit to treat for work related carpal tunnel syndrome, because the injury did not occur as the result of an “accident.”   The employee was awarded $22,805 in back pay and $13,275 in attorney’s fees.   See Skipton v. S&J Tube, Inc., 822 N.W.2d 122 (Iowa Ct. App. 2012).

Another potential legal claim for violation of the drug testing law is one for wrongful discharge in violation of public policy.  The additional risk of a common law claim based upon violation of the drug testing statute is that a plaintiff has potential remedies over and above those the statute allows, including to damages for emotional distress and punitive damages.   In McVey v. National Organization Service, Inc (Iowa 2005), the Iowa Supreme Court allowed an employee to sue for the employer’s failure to strictly comply with the drug testing law, but did not recognize the claim as a public policy claim, which limited the remedies to those in the statute.    However, a trial court in Delaware County recently allowed a public policy claim based upon violation of the drug testing law.  The employer in that case admitted it did not strictly comply with the drug testing law in connection with an employee termination, but contended the employee was limited to statutory remedies.    The trial court not only disagreed with the employer’s position, but granted the plaintiff summary judgment based upon the employer’s admission it violated the statute.   The jury award was not significant in the grand scheme of things ($57,000 economic damages, $12,000 emotional distress).  But, this ruling nonetheless highlights that the employer benefits that came with the legislature’s amendments do not eliminate legal risks for failure to strictly comply with the law.

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