September 2012 Volume XI No. 7 Taking Care of Business
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7th Circuit Reverses Opinion on Reassignment of Disabled Employees

Until recently, the precedent in the Seventh Circuit Court of Appeals did not require employers to automatically reassign disabled employees to vacant positions for which they were qualified, especially if there was a better qualified applicant for the position. In September 2012, the Seventh Circuit reversed course to conform to an earlier Supreme Court holding, and changed its interpretation of the Americans with Disabilities Act to require reassignment of a disabled employee to a vacant position if such reassignment is ordinarily reasonable under the circumstances and would not create an undue hardship for the employer.

Under the Americans with Disabilities Act of 1990 (“ADA”), an employer is prohibited from discriminating against an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the job. 42 U.S.C. § 12101 et seq. An employer must make a reasonable accommodation to the known physical or mental limitations of the employee, unless to do so would impose an undue hardship of the operations of the employer’s business. The ADA provides a non-exhaustive list of efforts an employer can undertake to provide a reasonable accommodation to a disabled employee. One such example under the ADA is the reassignment of the disabled employee to a vacant position. Until recently, the Seventh Circuit Court of Appeals had held that under this provision of the ADA an employer was not required to reassign a disabled employee to a vacant position for which there was a better qualified applicant, so long as the employer had a consistent policy of hiring the best applicant for the job in question. See EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000). However, in September 2012, the Seventh Circuit reversed course and held that the ADA mandates that an employer reassign an employee with a disability to a vacant position for which that employee is qualified, so long as such an accommodation is ordinarily reasonable and would not present an undue hardship to the employer. EEOC v. United Airlines, 2012 U.S. App. Lexis 18804 (7th Cir. September 7, 2012).

In the United Airlines case, the Seventh Circuit reversed its prior interpretation of the ADA’s provision concerning reassignment to conform with a 2002 Supreme Court opinion, which held an employee must only show that the accommodation sought seems reasonable on its face, in the ordinary run of similar cases, in order to shift the burden to the employer to show that the accommodation sought will create an undue hardship on the employer under the circumstances. U.S. Airways v. Barnett, 535 U.S. 391 (2002). In Barnett, the Supreme Court held that the reassignment of a disabled U.S. Airways baggage handler to a mailroom position was a technically reasonable accommodation under the ADA. However, the Court held that because the reassignment would violate the company’s long-standing seniority system for access to certain positions, the reassignment was not reasonable in the ordinary run of cases involving such seniority systems. Despite its holding that the reassignment in Barnett was not a reasonable accommodation in a case involving a seniority system, the Supreme Court also stated that an employee remains free to demonstrate that under the unique circumstances of a particular case, reassignment is reasonable.

Relying on Barnett, the Seventh Circuit held that United Airlines’ Reasonable Accommodation Guidelines may violate the ADA, as those guidelines did not provide for automatic reassignment of a disabled employee to a vacant position in the absence of a showing of undue hardship by the employer. Instead, the Guidelines provided that the transfer process was competitive, and that disabled employees requiring accommodation would be given preferential treatment, but would not be automatically assigned to the vacant position if a better qualified applicant had applied. The Guidelines also provided that a disabled employee would be permitted to submit an unlimited number of transfer applications, would be guaranteed an interview, and would receive priority consideration over equally qualified non-disabled candidates. Despite these provisions, the Seventh Circuit held, in light of Barnett, that such a policy may violate the ADA, as automatic reassignment is ordinarily reasonable under policies that require the hiring of the best qualified applicant, unless an undue hardship can be shown. In reaching its conclusion, the Seventh Circuit reversed its earlier position, and clearly held that under the ADA, preferential treatment in the form of automatic reassignment is sometimes necessary to achieve the ADA’s basic goal of equal opportunity.

What does the Seventh Circuit’s new holding mean for employers addressing a potential reassignment of a disabled employee? First, an employer with a policy of hiring the best qualified applicant for a specific position, regardless of the number or order of applicants, will be required to offer the open position to a disabled employee seeking reassignment, so long as that employee is minimally qualified for the position. An employer will only be permitted to refuse such mandatory reassignment if it is not a reasonable accommodation in the ordinary run of cases, a circumstance which the Seventh Circuit has all but eliminated in the context of policies seeking the best qualified applicant. In light of this new precedent, employers should recognize that a best qualified applicant policy is not universally enforceable, especially where a disabled employee has applied for reassignment to a position governed by the policy. Employers should carefully consider hiring decisions for positions that a disabled employee has applied for before rigid adherence to such a policy.

Second, employers desiring to refuse a mandatory reassignment that qualifies as a reasonable accommodation must be prepared to demonstrate that under the facts of the specific case, mandatory reassignment would create an undue hardship for the business operations of the employer. Finally, employers should be aware that even if the accommodation of mandatory reassignment is not reasonable under the ordinary run of cases similar to their own, an employee may still prevail if he or she can demonstrate that the specific facts of the particular case make such reassignment reasonable.

The Seventh Circuit’s recent reversal of its earlier precedent governing the scope of reassignment as a reasonable accommodation under the ADA may significantly impact employers’ policies with respect to hiring decisions for vacant positions where one or more applicants is a disabled employee seeking reassignment. If you have questions about this article or the provisions of the ADA, please contact us at www.hwelaw.com.

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Protected Concerted Activity Under the National Labor Relations Act Encompasses Many Activities, and Understanding that Protection is Critical for Employers

Joe Jaskowiak
Joe Jaskowiak

Concerted activity for the purpose of collective bargaining or other mutual aid and protection, a protected right of both union and non-union employees under the National Labor Relations Act, encompasses many activities that, at first blush, may not be easily identified as protected by federal law. Even the simplest of activities, such as a discussion between a single employee and supervisor concerning wages, benefits or other terms of employment may constitute a protected concerted activity if undertaken for the mutual aid or protection of employees. Employers should exercise caution in prohibiting certain activities, or imposing discipline responsive to them, in order to avoid running afoul of Federal law.

Concerted activity for the purpose of collective bargaining or other mutual aid and protection, a protected right of both union and non-union employees under the National Labor Relations Act, encompasses many activities that, at first blush, may not be easily identified as protected by federal law. Employers must be cautious when taking employment-related action based on such activities, even if the activity appears on its surface to be outside the scope of the Act, as an adverse action based on a protected right may have significant consequences to the employer.

Section 7 of the National Labor Relations Act provides:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

[29 U.S.C. § 157.] While this section clearly codifies certain specific rights, such as collective bargaining and participation in labor union activities, it also protects the rights of employees to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” It is the broad language of these latter protections that often proves troublesome for employers. Moreover, although Section 7 makes multiple references to activity involving labor unions, leading some employers to believe it applies only to union employees, the section protects concerted activities of all employees, including non-union employees.

Unfortunately, the NLRA does not define its use of the term “concerted activity.” However, both the National Labor Relations Board and the federal courts have provided guidance in this area, and have generally held that the term “concerted activity” includes the activities of an employee or employees who engage in the activity to achieve a common goal in benefit to a company’s employees. NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 830 (1984). It is the goal of mutual benefit or aid to multiple employees that lies at the heart of the NLRA’s protection of concerted activity. Further, while the use of the term “concerted” may imply the need for participation by multiple individuals, a single individual may be found to engage in protected concerted activity under Section 7 so long as he or she takes action to protect the rights of other employees and not just his or her own. In fact, an individual employee need only work with or on authority of another in engaging in the activity to trigger the Act’s protections.

Given the broad scope of activities that fall within the definition of “concerted activity” under Section 7, it is not surprising that numerous employers have unknowingly restricted employee activities without realizing that they were violating Section 7 rights. Of significant concern to employers is the speed with which activity can become “concerted” under the Act. Recently, the NLRB illustrated this point when it held that even the mere act of an individual employee complaining to a supervisor about a perception that employees of a certain national origin received raises based on the fact that the supervisor was of the same national origin constituted protected concerted activity. See Parexel Int’l, LLC, 356 NLRB 82 (2011). When the company fired the complaining employee over concern about a “rumor” that employees of a certain national origin were receiving favorable treatment, the NLRB ruled that her termination was in violation of the Act, as her complaint to her supervisor was a discussion concerning wages for the mutual aid or benefit of employees, a vital term and condition of employment resting at the very heart of Section 7's protections. Id. The Board held that the employer’s attempt to “nip” such concerted activity in the “bud” was a clear restraint on the exercise of Section 7 rights.

Cases such as Parexel illustrate not only the expansive scope of protected concerted activity, but also the extension of Section 7's protections to employees who are not members of a union. Even where a non-union employee’s actions have nothing to do with a union, such actions may still be considered protected concerted activity if they seek mutual aid and protection of employees and may reasonably be expected to affect terms or conditions of employment. For example, the refusal by non-union employees to continue working in unusually unsafe conditions has been considered protected concerted activity. NLRB v. McEver Engineering, Inc., 784 F.2d 634 (5th Cir. 1986). Similarly, the refusal of non-union employees to continue working after lodging several complaints about their supervisor was protected concerted activity where the employer failed to respond to the complaints. Trompler, Inc. v. NLRB, 338 F.3d 747 (7th Cir. 2003). More recently, the NLRB has found that where the non-union staff of an urgent care center sent an anonymous letter to the owner/doctor, asking for reconsideration of wage cuts and suggesting alternatives for saving money, that activity was protected concerted activity, and the firing of two employees who wrote and edited the letter was a violation of Section 7 rights. Northfield Urgent Care, LLC, 358 NLRB17 (2012).

Each of these cases illustrates not only the expansive nature of protected concerted activities under Section 7 of the Act, but also the fact that such protections are afforded to all employees, regardless of their affiliation with a labor union. All employers, especially those who employ non-union personnel, should carefully consider the basis of any planned employment action, to ensure that it is not taken in response to an activity that is protected by Section 7. At a minimum, the precedent of the NLRB and federal courts make clear that discussions of wages, hours, benefits and other similar topics are almost always protected, and should not be limited or banned in order to avoid running afoul of Section 7. All employers should ensure that their policies and the enforcement of those policies do not impinge on the rights bestowed by Section 7.

If you have questions regarding the nature of protected concerted activity or are in need of consultation on this or other employment or labor matters, please visit our website at www.hwelaw.com.

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