Suits In The WorkPlace

A company that allows employees to use email for personal reasons cannot prohibit union-related messages on its system.  The U.S. Court of Appeals for the Fourth Circuit ruled last week that Media General, owner of the Richmond Times Dispatch newspaper, could not enforce its electronic mail policy to prohibit union-related messages.

The case was appealed from the National Labor Relations Board, which had determined that Media General “violated sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), (5), by disparately enforcing a company e-mail policy.”

In considering the appeal, the Court noted that while Media General had an official e-mail policy that “restricted use of the company e-mail system to matters related to company business,” that policy had not been consistently enforced.  Indeed, only two employees had been disciplined under the policy, and that was for accessing pornography.  The court noted that Media General’s email system “contains numerous examples of messages unrelated to the work of the newspaper.  The e-mail system was frequently used by both hourly employees and managers to convey news about the employees’ personal lives, to arrange social events, and to inform employees about charities.”  No big surprise here; show me a corporate email system, and I'll show you personal, social and charitable messages. 

Importantly, however, the Court concluded that preventing the union from using the email system for union-related business, while permitting all these other kinds of messages, was an unfair labor practice prohibited by the NLRA.  The result:  now the existing union can use the Company's system to conduct business and communicate with employees.  The implication:  for non-union employers, union organizers could use company email to persuade employees to elect a union.  All on the Company's dime.  Nice.

The lesson:  employers must exercise great care in both 1) crafting and 2) enforcing email policies.  As shown above, an unenforced policy, or one that is only sporadically enforced, can be worse than no policy at all.  Policies need to be worded both carefully and reasonably, so that employers may enforce them to prohibit not all non-business messages (which almost nobody enforces), but so that employers can minimize disruption in the workplace, and can reduce email traffic that may negatively impact productivity in the workplace.

I seem to be somewhat obsessed with sleeping in the workplace lately, and I’m not sure why.  Here’s one more.  Apparently “unacceptable and dangerous behavior” is not a good enough reason to fire an employee in Oregon any more – at least not if the behavior can be related in any way to a disability.  A federal district court judge recently denied the City of Salem’s motion for summary judgment in a case brought by a former 911 dispatcher employed by the City who was fired for sleeping on the job. (Brown v. City of Salem, No. 04-1541-HA, 2007 WL 671336 (D. Or. Feb. 27, 2007)).     

Jon Brown worked as an emergency dispatcher for the City of Salem for almost 25 years.  Brown was diagnosed with sleep apnea more than 10 years before he was terminated in 2003.  As a result of the sleep apnea, Brown suffered from “micro-sleeps” – involuntarily falling asleep for brief periods of time. (I always thought they were called naps.)  Brown acknowledged that the City was initially cooperative in attempting to reasonably accommodate his condition.  He was excused from night duty and was provided with a fan after his physician indicated that high temperatures in the workplace might trigger the micro-sleeps.  These accommodations failed to completely alleviate Brown’s symptoms, however, and he was ultimately terminated in 2003, at least in part because he fell asleep while on duty. 

Concluding that Brown had presented a prima facie case of disability discrimination under the ADA, the court rejected the City’s motion for summary judgment and ruled that Brown’s claim could proceed to trial.  At issue was whether a causal connection existed between the termination and the disability.  Brown’s managers knew he suffered from sleep apnea when they terminated him, and they recognized that his sleeping on the job might have been related to that disability.  Nevertheless, there were obvious safety concerns relating to a "micro-sleep" happening in the middle of an emergency call.  Noting that “conduct resulting from the disability is considered to be part of the disability and that termination based on that conduct is unlawful,” the court denied the City’s motion for summary judgment.  

This decision takes the protected status associated with a disability pretty far.  The court seems to suggest that any activity caused by a disability is off-limits as a basis for termination.  So if the employee has a mental disability that causes violent behavior, does that mean the employer cannot fire the employee even for workplace violence?  In Oregon, it might.  In Brown, the Court paid some lip service to the City’s “valid concerns about the risks to the public posed by the plaintiff’s continued employment,” but it still didn’t change the outcome.  There is no question the City was focused on Brown’s behavior (i.e., falling asleep), and presumably it would terminate anyone falling asleep in such an important job, regardless of whether it was caused by a disability or not.  Moreover, they tried to accommodate him, but could not.  I do not read the ADA to protect employees who cannot safely perform their essential job functions with a reasonable accommodation, and view this decision as potentially dangerous:  both for employers attempting to address such issues in the workplace, and for people calling 911 in Oregon.

Employers should be especially vigilant in defining and articulating essential job functions, and documenting the risks associated with an employee’s failure to perform such functions.