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Publications | September 3, 2019
7 minute read

Danger Ahead! Navigating HR’s Legal Minefield

As you sail through your day-to-day human resources matters, you know there are many employment laws that apply. There are nuances, however, that create a legal minefield. This article identifies some of these mines so that you are better equipped to safely navigate.

The Fair Credit Reporting Act (FCRA)

Employers who use third parties to run background checks on current or prospective employees are subject to a series of strict technical requirements under the federal FCRA. The FCRA requires, among other things, that employers disclose to employees or applicants if they are going to conduct such a background check and obtain the individual’s written authorization to do so. If a background check turns up negative information, then prior to taking any adverse action against the individual the employer must provide specific notice, a copy of the background check, a summary of their rights under the FCRA, and provide them with a reasonable time to respond to the contents of the background check. If the individual does not respond, or if the employer is not persuaded by their response and decides to implement the adverse action, then an additional notice is required. Every one of these steps has detailed and technical requirements under the FCRA and its regulations. Employers can be sued for missing any one of these steps, for leaving any required information out, or even for providing too much information. And there are plaintiffs lawyers who make a living by identifying technical violations of these rules and suing the employers in class action lawsuits. Delta Airlines, for example, recently settled such a class action lawsuit for $2.3 million!  

Avoid this mine by taking the time to confirm that your background check procedures are FCRA-compliant.

Title VII of the Civil Rights Act 

Can a single incident of misconduct create an unlawful hostile work environment? A hostile work environment occurs when any unwelcome conduct that is based on a protected characteristic “is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”  In 2017, the federal Third Circuit Court of Appeals held that a single incident can be enough. 

In Castleberry v. STI Group, the plaintiffs were two African-American employees who worked for an oil and natural gas company. While working on a fence-removal project, the plaintiffs’ supervisor allegedly said that if they had “n***er-rigged the fence,” they would be fired. The plaintiffs reported the offensive language to a superior and were fired two weeks later without explanation. The lower court dismissed the harassment claim, stating that the alleged harassment was not “pervasive and regular” enough to create a hostile work environment. The Court of Appeals reversed, clarifying that the standard is “severe or pervasive.” Accordingly, a single, extreme act of discrimination can create a hostile work environment.  

Don’t ignore a harassment complaint just because there was a single incident of bad behavior. It may be enough to cause a serious legal problem. 

The Americans with Disabilities Act (ADA)

Employers may violate disability discrimination laws when they categorically deny an employee’s accommodation request that involves the modification of a workplace policy. In EEOC v. Dolgencorp LLC, the federal Sixth Circuit Court of Appeals affirmed a $275,000 jury verdict in favor of a former sales associate. The Court found that a retail store violated the ADA when it denied outright the associate’s request to keep orange juice at her cash register to help manage her type II diabetes. Following the denial, the associate suffered at least two hypoglycemic episodes while working alone with customers still in the store. Unable to excuse herself to the store’s break room, she grabbed a bottle of orange juice from the store’s cooler and drank it. After each episode, she paid the store the amount of the orange juice. The store’s upper management terminated her employment for violating the store’s grazing policy. The Court noted that the store completely failed to engage in the interactive process as required by law before denying the employee’s request for orange juice.

One size does not fit all when it comes to the ADA. Employee requests for an accommodation require an interactive process. Avoid this ADA mine by granting simple accommodation requests and engaging in the interactive process for more challenging requests.

The Family & Medical Leave Act (FMLA)

It is not uncommon for employers to suspect that some employees take FMLA leave when they don’t really need to. An employee who fraudulently uses FMLA leave may lawfully be terminated. But a municipal employer in Massachusetts recently learned the hard way that it should have more carefully investigated an employee’s activities while on leave before terminating him. While off work on FMLA leave for foot surgery, the employee took a trip to Mexico. The employer fired him for FMLA abuse. The employee sued. It was not until after the employee was fired that the employer found evidence of him doing things that were inconsistent with his need for leave. Because the employer did not know of those activities before it terminated him, the Court upheld a $1.9 million jury verdict in favor of the employee.  

Look before you leap! Promptly and thoroughly investigate any suspected FMLA fraud to avoid this mine.

The Occupational Safety & Health Act (OSHA)

An employee amputates the tip of his finger while operating a table saw—what now? There are approximately 50,000 amputations nationwide each year. When faced with an amputation injury, there are a number of federal or state occupational safety and health standards that apply. First, you must report the injury to OSHA or the applicable state agency within 24 hours of the incident. You also must record the loss of a finger (regardless of bone loss) on the employer’s Form 300.  Further, if any employees were exposed to bloodborne pathogens while helping the injured employee, a post-exposure follow-up is required under the bloodborne pathogens standard. In addition, depending on the proximity to outside medical help, you may be required to have someone on your staff adequately trained to render first aid with readily available supplies.

When faced with a workplace injury, avoid potential OSHA mines by identifying and complying with each of the relevant safety standards.

The Michigan Medical Marijuana Act (MMMA)

Michigan’s medical marijuana laws generally do not affect an employer’s ability to prohibit marijuana use or to terminate employees for positive test results. However, in Braska v. Challenge Manufacturing et al., the Michigan Court of Appeals held that an employer could still be liable (indirectly through the state) for unemployment benefits.

In Braska, three employees, all medical marijuana cardholders, tested positive for marijuana but were not under the influence at work. The employer terminated all three employees and contested their unemployment benefits. The Michigan Court of Appeals ruled that an MMMA cardholder terminated for a positive marijuana drug test is not disqualified from receiving unemployment benefits, so long as the employee’s use of marijuana is in accordance with the MMMA and the employee had not ingested or been under the influence of marijuana at work. The Court based its holding on specific “penalty” language within the MMMA’s immunity clause—denying an MMMA cardholder unemployment benefits is an impermissible penalty under the MMMA. 

You can terminate MMMA cardholders for positive test results, but recognize that you may still owe them unemployment benefits, unless you have documented evidence that the employee was under the influence at work.

The National Labor Relations Act (NLRA) / The Michigan Payment of Wages & Fringe Benefits Act (PWFBA)

You want to give a high performer a significant raise, but you don’t want to ruffle any feathers among the other team members. It may be tempting to swear the high performer to secrecy, or to include employee compensation as confidential information in your confidentiality policy. This is a temptation you must resist. The NLRA gives employees—including non-union employees—the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This language means that employees can discuss the issues that affect them at work, including their compensation. Further, under Michigan’s PWFBA, it is a misd-emeanor to require employees to keep their compensation confidential.  

With secrecy off the table to avoid this mine, what can you do instead? Consider taking the opposite route by being transparent with your employees. Talk with each team member about the salary range for their position, the factors considered to determine compensation, and specific steps they can take to increase their individual compensation going forward.  
This legal minefield highlights the importance of regular training for HR professionals, managers and supervisors. We can help you with that training. And when an employment issue requires you to navigate the minefield, be sure to call your labor and employment attorney at Warner Norcross + Judd for assistance.