As if Counties could forget that Court employees are just a little different, the Commonwealth Court of Pennsylvania sent us another reminder when the Court held that the Pennsylvania Whistleblower Law does not apply to judicial employees.

Gregory Thomas was a Juvenile Probation Officer serving with the Washington County Court of Common Pleas until October 2014, at which time he was allegedly forced to quit. Prior to his resignation, Thomas had been a participant in an investigation regarding the misappropriation of funds by the Juvenile Probation Office. During the investigation, it was revealed that the Chief of the Juvenile Probation Office had directed Thomas to email the County’s purchasing office in July 2014 to state that a mixed martial arts training session had taken place on June 6 and 7 in partial satisfaction of the state’s 40-hour annual training requirement. The email sought, and was granted, funding for the training. No such training actually occurred, and Thomas confirmed to the investigating detectives that he had not attended this training; he alleges that he had been told by the Chief Probation Officer to tell the detectives otherwise.

The day after his interview with the detectives, Thomas was notified that he needed to resign or he would be fired for reasons not related to the investigation. Thomas brought suit against the County, Court Administration, and others alleging that he reported wrongdoing and misappropriation of funds when he spoke to the detectives, and therefore his forced resignation violated the Pennsylvania Whistleblower Law. The Defendants contended that the Whistleblower Law did not apply to judicial employees because doing so would violate the separation of powers doctrine. The trial Court granted the Defendants’ Preliminary Objections and entered judgment in their favor, finding that judicial employees are not subject to the Whistleblower Law.

In reviewing the case, the Commonwealth Court noted that the statute itself does not reference the Judiciary in the definition of “employer” or “public body,” and that prior case law established that the Legislature did not intend to include the Judiciary therein or it would violate their constitutional authority to hire, fire and supervise their employees. As such, the only way that the statute could apply was if the Court voluntarily waived sovereign immunity. Although Thomas argued that the Court had done so because the Code of Conduct for Judicial employees issued by the Administrative Offices of the Pennsylvania Courts specifically referenced the Pennsylvania Whistleblower Law, the Court disagreed that “the mere description of the Whistleblower Law in a Note…demonstrates the Court’s intent to bring the Judiciary under the scope of that Law.”

In particular, the Court noted that the reference to the Whistleblower Law was found in that section of the Code of Conduct related to the Duty to Report, which requires employees to report to their immediate supervisor any attempt to induce them to violate the Code of Conduct, and that the reference was a mere description of the Law. Nothing in the reference specifically states that the Law is applicable to the Judiciary, or otherwise indicates the Court’s intent to make the Law applicable. The Commonwealth Court stated that, considering the “vigilance” and “care” that the Court takes to protect its independence and the separation of powers, more than a general description of a legislative enactment would be required to demonstrate an intent to make the Law applicable to it. Because the Law did not apply to the Courts, the Preliminary Objections were properly sustained and judgement entered for the Defendants.

The Thomas v. Grimm case should serve as a reminder that there are special considerations when dealing with HR issues involving Court employees – and the rules for hiring, firing and supervision may be slightly different. A good County HR Department must be careful, therefore, not to overstate the rights and protections of Court employees while also advocating for the County’s position on an employment decision and respecting the separate role of the Courts. Aside from the specific reminder about the unique Court-County relationship, Thomas should also serve as a reminder to all public sector employers of the unique position they and their employees are in when it comes to the employment relationship, where they must be careful to navigate their role as a public service entity providing statutory and constitutional resources to its constituents while also respecting the constitutional and other legal rights of employees.

The EEOC has recently issued guidance addressing a variety of issues under the Americans with Disabilities Act, the Pregnancy Discrimination Act, and Title VII of the Civil Rights Act.

What is unique about this recent guidance is that the materials, entitled “Legal Rights for Pregnant Workers Under Federal Law,” “What You Should Know: Equal Pay and the EEOC’s Proposal to Collect Pay Data,” and “Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work,” are directed at employees and physicians rather than employers. However, this guidance certainly offers a trove of helpful information that employers may rely on when necessary.

For instance, in “Legal Rights for Pregnant Workers”, the EEOC provides guidance regarding the employee’s right to an accommodation of any restrictions that may result from a pregnancy, particularly in the nature of altered break and work schedules, permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions and/or permission to work from home. However, the guidance also notes instances in which accommodations would be unreasonable and therefore, unnecessary. Being primed to discuss some of those issues as part of the interactive process and referencing the guidance’s conclusion that “the ADA doesn’t require your employer to make changes that involve significant difficulty or expense” and that “if more than one accommodation would work (to address your restrictions), the employer can choose which one to give you” may help keep the employee engaged and effective in the workplace.

The materials directed at physicians are also helpful for employers, particularly because it can easily be attached to correspondence to the physician when requesting additional information about a potential employee accommodation issue. Employers often have to follow up with physicians because an initial request for accommodation comes in the form of a note scrawled on a prescription pad, with no explanation of the condition, the reason for the accommodation, and how the accommodation will address the circumstances of the condition. The EEOC’s resource should be of assistance to employers on these issues, where it notes that documentation from a physician is most helpful where it includes:

  • The nature of the patient’s condition. State the patient’s pregnancy-related medical condition.
  • The patient’s functional limitations in the absence of treatment. Describe the extent to which the medical condition would limit a major life activity (e.g., lifting, bending or concentrating), or a major bodily function (e.g. bowel or circulatory functions), in the absence of treatment or any other accommodation. If the symptoms of the condition come and go or are in remission, describe the limitations during an active episode. It is sufficient to establish substantial limitation of one major life activity or major bodily function.
  • The need for an accommodation. Explain how the patient’s medical condition makes changes at work necessary. For example, if your patient needs an accommodation to perform a particular job function, you should explain how the patient’s symptoms – as they actually are, with treatment – make performing the function more difficult. If necessary, ask your patient for a description of her job duties. Also explain to the employer why your patient may need an accommodation such as a schedule change (e.g., to attend a medical appointment during the workday.) Limit your discussion to the specific problems that may be helped by an accommodation.
  • Suggested Accommodation(s). If you are aware of an effective accommodation, you may suggest it. Do not overstate the need for a particular accommodation in can an alternative is necessary.

This language, at least, can be cited by employers in their correspondence to physicians regarding accommodations requests to better help advance these discussions quickly.

The Pay Data guidance relates to the recent proposal to begin collecting summary pay data by gender, race and ethnicity, and again is generally directed at employees to explain their rights to equal pay and how to enforce those rights. However, the one piece of additional news for employers is that the EEOC is continuing to pursue the revision of the EEO-1 for the collection of pay data and, sometime during this summer, will be submitting revisions for a second comment period before the proposal for data collection is finalized. We will keep you posted on this initiative.

Just as the Commonwealth Court seemed to know we would be discussing the work-relatedness of injuries that occur on an employer’s premises, so too did the EEOC anticipate our presentation entitled “Your Leave is Giving Me a Migraine” by issuing guidance on May 9, 2016 addressing “Employer Provided Leave and the Americans with Disabilities Act.”

The guidance, which discusses the question of when and how leave is to be provided in cases of an employee’s disability under the Americans with Disabilities Act, makes several key points for employers that we also raised at the McNees Labor seminar:

  • If an employer has a leave policy, such as sick, vacation, extended, or otherwise, and whether paid or unpaid, a disabled individual must be permitted to use this existing leave in the same way any other employee would use it. Importantly, if an employee asks for leave under this policy and an employer would not normally request a doctor’s note for use by any other employee, the employer cannot require it of the disabled employee as a condition of the leave.
  • In the absence of a leave policy and/or where leave has been exhausted, additional leave can be a reasonable accommodation. As noted by the EEOC, the “purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.” An employer cannot assert that it does not provide leave or the leave provided has been exhausted as a defense to a leave request and/or the ultimate claim that the ADA has been violated.
  • Anytime leave is requested as an accommodation, an employer should consider whether or not or under what circumstances it could be granted; such leave does not have to be paid leave. However, leave should only be refused where the employer has determined that providing additional leave will constitute an undue hardship to the employer.
  • Because the employer should generally refuse leave only where it presents an undue hardship, policies that provide for a maximum amount of leave, after which an employee would be automatically terminated, do not satisfy an employer’s obligation to engage in the interactive process and undue hardship analysis. As much as we as employers and attorneys would prefer it, the EEOC has refused to set a bright line rule defining how much leave is too much.
  • Similarly, requiring that an employee be 100% healed before returning to work from a leave of absence could constitute an ADA violation because it fails to take into account whether the employer can perform the functions despite any ongoing limitation with or without a reasonable accommodation. Unless no accommodation exists or the employee poses a “direct threat” in the restricted capacity, the employer must consider reassignment and other alternatives to the application of the 100% healed policy that would allow the employee to return to work. Naturally, this will require the employer to consult with the employee prior to their return as a natural part of the ongoing interactive process mandated by the ADA, and employers can, within reason and considering the circumstances of the leave, engage with the employee during the course of the leave in order to plan for the return to work.
  • In assessing the reasonableness of the need for leave and whether or not it presents an undue hardship, employers can consider leave already taken, the amount of leave being requested, the frequency of the leave if not continuous, the flexibility of the leave in terms of when it is taken if intermittent in nature, whether intermittent leave is predictable or unpredictable, the impact on coworkers and/or the duties can still be performed in an appropriate and timely manner, and the impact on the employer’s operations and ability to serve its customers. No one factor is controlling, and each of these factors is wholly unique to each individual case.

The takeaway here is that communication is key. This includes communication with employees requesting leave about the nature of and need for the leave as well as expectations regarding the return to work, and it also includes communication with managers and supervisors about the effect of the leave, and communication with decision-makers about policy modifications. Policies must also allow for communication, employers must ensure that the communication occurs in each case, and employers also have to consider each request individually in order to avoid ADA concerns.

For government employers, disciplining and terminating employees can be especially difficult. Not only does the public employer face the same challenges in complying with the standard alphabet soup of employment laws that private employers do, including the ADA, ADEA, FMLA, Title VII, etc., they also have the complicated task of considering the application of an employee’s Constitutional rights in making employment decisions. Unfortunately, the protections provided by the constitution to government employees don’t rely on the kinds of “immutable” traits often in issue in the alphabet soup context, which means that determining when constitutional rights could be violated is particularly troublesome.

Recently, in Heffernan v. City of Paterson, the United States Supreme Court brought the analysis applicable to First Amendment retaliation claims closer to your typical alphabet soup case in one small way – focusing on the employer’s intent. In a typical discrimination context, the employer’s intent is key when examining the reason given for the action and the circumstantial evidence that may call that stated reason into question. In short, the question is: was it the employer’s intent to discriminate in disciplining an employee, or was it really the employee’s violation of an employer policy?

In the First Amendment context, employer intent is usually irrelevant or assumed; the focus instead is on whether the speech or activity is personal or on a matter of public interest, whether the employee acted as a citizen or an employee, and how the speech or activity could harm the government’s interests. Heffernan, however, presented the unique situation where the employee contended he didn’t intend to speak or act at all, but the employer punished him for its perception that he had. The Court therefore faced the following question: whose intent is more significant in the constitutional rights context? The Heffernan Court found that it is the employer’s intentions that are critical to determining whether there has been a violation of the employee’s rights.

In reaching this decision, the Court considered the following facts: Jeffrey Heffernan was employed as a police officer for the City of Paterson in 2005 under Chief of Police James Wittig. Both the Chief and Heffernan’s direct supervisor had  been appointed to their positions by the Mayor, who was running for reelection. During the campaign, Heffernan’s colleagues spotted him at campaign headquarters talking with campaign workers and holding a campaign sign for the Mayor’s opponent, who was a known friend of Heffernan. When word reached his supervisors, Heffernan was demoted from a detective position to a patrol officer position, and given an undesirable patrol post, allegedly to punish his involvement in the opposition’s campaign.  Heffernan denied being involved in the campaign, and denied supporting the candidate, stating that he was only picking the sign up for his mother, who was bedridden and could not do it for herself.

In response to his demotion, Heffernan filed a lawsuit against the City contending that he had been demoted because the City believed he engaged in conduct that constituted protected activity, even though he denied that he had intended to speak or act.

Prior case law is very clear that government employers are prohibited from making an employment decision because an employee supports a particular political candidate. However, Heffernan was contending that he didn’t actually support the oppositional candidate, but the City mistakenly believed he did. The City’s position in the litigation was that, since he hadn’t intended to engage in protected activity, his activity wasn’t protected…and its demotion decision could therefore only violate his rights if in fact he actively supported the candidate.

Ultimately, the Court concluded that “the government’s reason for demoting Heffernan is what counts…When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects (even if the employee did not intend to engage in that activity), the employee is entitled to challenge that unlawful action under the First Amendment…” Whether the employer has correctly or incorrectly deduced the employee’s motives in engaging in particular behavior, the Court opined that the same constitutional harm would result – an employee would be demoted or terminated for appearing to engage in protected activity, thereby discouraging other employees from engaging in what should be protected activity. Because the harm would result regardless of the accuracy of the employer’s belief, the employer’s reason for the employment action must govern in determining if a First Amendment cause of action and violation exists.

Unfortunately for Heffernan, his fight with the City will continue on, as the Supreme Court did not reach the ultimate question of whether his rights had been violated. To the contrary, the Court’s decision remanded the case back to the trial court to determine whether or not Heffernan’s demotion occurred pursuant to an existing neutral policy prohibiting police officers from overt involvement in any political campaign, and whether such a policy complies with constitutional standards generally.

The immediate take-away for government employers and elected officials (and the HR personnel who love them), in light of the Heffernan decision should be on the reinforcement of what we know already from other employment discrimination cases: we must examine the reason for an employment decision before it is made to ensure there is  no protected classification or protected activity motivating the decision. Even if the employer is  wrong about what the employee intended by his actions, a decision motivated by an intent to punish what would otherwise be protected activity could violate the constitution.