An Analysis Of The Chris Kluwe Controversy And The Right To Speak One’s Mind

Former NFL punter Chris Kluwe, who played for the Minnesota Vikings until the Vikings released him before the start of the 2013 NFL season, recently made headlines when he claimed that the Vikings cut him because of his well-publicized support for gay rights in Minnesota, not because of his football performance.  It’s difficult to research this question because there are 32 NFL teams and thousands of former NFL players, but this has to be a rare, if not the only, instance of an NFL player asserting that his team released him under circumstances that make it sound an awful lot like a wrongful termination case.  Kluwe has stated that he hopes litigation over his release can be avoided, but what exactly would his legal rights be?  I can’t analyze how Minnesota state law would apply to this question, but I can look at it from a federal legal angle.

Kluwe likely has no federal legal rights because federal law currently does not recognize sexual orientation as a protected characteristic.  Federal law prohibits discrimination based on race, sex, religion, age, disability, and national origin.  It’s also illegal under federal law for an employer to fire an employee because that person opposes workplace discrimination along those lines.  But even if federal law did recognize sexual orientation as a protected characteristic, that probably wouldn’t help Kluwe because he was taking a political, not workplace, stand regarding gay rights.  Moreover, Kluwe would probably be considered an independent contractor, not an employee, of the Vikings.  The federal civil rights/employment laws only protect employees, not independent contractors.

Okay, so Kluwe was making a political point.  That’s as American as can be; it therefore must be illegal for a private business to terminate someone because of that person’s politics, right?  Nope. While every U.S. citizen is entitled to the rights guaranteed by the First Amendment, including the right to free speech, free speech rights can only be asserted against the government.  The right to free speech does not apply to private settings that lack government involvement, such as your living room or a private business.  Thus, for private employers and businesses, people have no First Amendment right to say or do whatever they wish.  Only government employees are protected from retaliation for exercising their free speech rights.

I’m sure that if Kluwe sues the Vikings he’ll assert some sort of breach of contract claim.  I can’t analyze that because I don’t have a copy of Kluwe’s Vikings contract.  But there’s enough prestige and publicity waiting in the wings on this one that a team of lawyers will likely bend over backwards to find a way to bring a meritorious lawsuit against the Vikings if Kluwe so chooses.

No matter how Kluwe comes at the Vikings in a lawsuit, the ultimate question will always be: Why did the Vikings draft a punter in 2013 and then replace Kluwe with that rookie punter?  That of course is what cases like this always come down to – Why did the defendant do what it did?  Was it for legitimate reasons or because of spite or ill-will?  The Vikings will always maintain that they released Kluwe solely for football performance reasons, i.e., the punter they drafted was better than Kluwe, and NFL teams rarely keep two punters on the roster, so Kluwe was released.  Kluwe will argue the opposite, that his football performance was fine and it was his public support of gay rights that cost him his Vikings position.  If nothing else, such a lawsuit should provide a rare and fascinating deep look into how an NFL team makes final roster decisions.

“Regarded As” Or “Perceived Disability” Claims Under The Americans With Disabilities Act

Throughout the last decade, Congress became increasingly concerned that federal courts were making it nearly impossible to sue for disability discrimination.  Basically, under the federal courts’ strict reading of the ADA almost no one was considered “disabled” and thus protected by the ADA.  Federal courts were consistently dismissing disability discrimination claims before trial based on plaintiffs’ failure to prove that they were “disabled.”

The concerns regarding the courts’ increasingly narrow definition of “disabled” led Congress to pass the Americans With Disabilities Act Amendments Act (“ADAAA”) in 2008.  The ADAAA went into effect on January 1, 2009.  It governs all disability/employment situations that have arisen since that date.  Congress intended the ADAAA to reinstate the broader definition of “disabled” under federal law that had existed when the original ADA was passed in 1990.

Because of the prolonged nature of disability discrimination claims, claims under the ADAAA (which only applies to events occurring after December 31, 2008) have just begun appearing in court decisions within the last two years or so.  That’s enough time to begin discerning some of the ADAAA’s effects.  One type of claim, “regarded as” or “perceived disability,” will very clearly have a tremendous impact on the employee side of disability discrimination.

“Regarded as” or “perceived disability” claims permit employees to prove that they are disabled by demonstrating that their employer regarded them as having a mental or physical impairment, even if the employee has no physical or mental impairment at all.  Employees arguing a “perceived disability” claim  do not need to show that their physical or mental impairment substantially limits a major life activity.  But, to avoid turning every minor or temporary physical or mental condition into a disability discrimination  case, the ADAAA excludes from “regarded as” or “perceived disability” coverage impairments that are transitory and minor.  A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

Disability discrimination cases require legal analysis of federal and state statutes, agency regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Employers Cannot Force Employees To Accept A Shorter Overtime Statute Of Limitations

Under federal overtime law, a claim must be brought within two years of the overtime violation unless the employee can prove that the employer willfully failed to pay overtime, in which case the statute of limitations is extended to three years.  Employees receive a separate two- or three-year time limit for each overtime violation.  Only claims for violations that occurred more than two (or perhaps three) years before suit was filed are invalid. 

Many employers include provisions in employment contracts that purport to reduce the time limit for filing an overtime claim to less than two years.  Federal courts do not honor such provisions.  They consider employer attempts to shorten the overtime statute of limitations to be impermissible waivers of employee rights under federal overtime law. 

In an earlier post I discussed the general rules against waiver of overtime rights.  Early in the history of overtime law, the United States Supreme Court was concerned that employers would try to circumvent the law’s requirements and gain a competitive advantage by demanding that employees waive their overtime rights.  Not only that, but waivers of overtime rights would also nullify the very purpose for passing such a law.  That same reasoning applies to employer attempts to restrict employees to a shorter overtime statute of limitations.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Job Reassignment As A Reasonable Accommodation Under Disability Discrimination Law

The Americans with Disabilities Act prohibits employment discrimination because of an actual or perceived disability.  One of the ADA’s requirements mandates that employers  reasonably accommodate individuals with
disabilities.  A reasonable accommodation is not required if if would  unless cause the employer undue hardship.  One type of reasonable accommodation is job reassignment to a vacant position.

As with any accommodation request under the ADA, employees requesting reassignment must initially establish that they are an “individual with a disability” as that term is defined by federal law.  Then, if a disability is established, job reassignment must be a reasonable accommodation.  It not always is.   Job reassignment is a necessary disability accommodation only if the employer has available a vacant equivalent position for which the disabled employee is qualified.  The employee seeking reassignment must have the requisite skill, experience, education, meet other job-related requirements of the position, and be able to perform the essential
functions of the new position with or without reasonable accommodation.

There are other limits to job reassignment as a disability accommodation.  Employers do not need to move employees out of existing positions to accommodate a disability.  Nor do they need to create a new job for disabled employees seeking reassignment.  Further, the proposed reassignment need only be roughly equivalent to the employee’s current position in terms of pay, status, benefits, or location.  The ADA doesn’t mandate that employers give disabled employees a higher-level position than the one they currently hold.

Disability discrimination cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

The Iowa Court Of Appeals Reminds You To Prove Causation

There’s a question that sometimes seems to be overlooked in civil cases — How did the defendant’s supposed wrongdoing harm you?  You have to prove not only that the defendant violated some aspect of the law, but also that the defendant’s violation caused you injuries and damages.  That’s generally referred to as “causation.”  The standards for causation vary from one type of claim to another, but the basic principle is always that you must prove you were harmed by the defendant’s conduct or you have no claim.  The principle applies to a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim, or insurance law claim.

This is not an issue to be taken lightly.  Money damages do not automatically flow from a determination that a defendant violated the law.  If Point A is the defendant’s liability and Point C is your injuries and damages, you need to have a good argument for Point B, which is causation, or the connection between the defendant’s liability and your injuries and damages.

The Iowa Court of Appeals’s recent decision in Stutzman v. West Des Moines OB/GYN illustrates this concept in tragic fashion.  Stutzman was a wrongful death case involving Julie Stutzman’s death from cancer.  Her estate and surviving family claimed that her doctor committed malpractice in the manner in which the doctor handled some of Julie’s earlier doctor visits.  The plaintiffs argued that, had Julie’s doctor properly handled and responded to earlier communications from Julie, Julie’s cancer would have been detected sooner and she would have had a higher chance of survival.

The Stutzman plaintiffs lost because they could only prove one aspect of malpractice against Julie’s doctor and clinic — A charting error.  But they were unable to establish that the charting error made a difference in the course of Julie’s subsequent cancer diagnosis and death, i.e., causation.  So Stutzman is a recent, good example of the importance of having sufficient proof of causation to connect the defendant’s wrongdoing to your harm.  Even though Julie’s family proved that her doctor did something wrong, they could mot prove that the doctor’s error harmed Julie, and they lost their case.

The Impact Of Your Social Media Use On Your Legal Rights

Your social media posts are not private.  Nor is there any law that prevents a lawsuit opponent from using against you something you posted on Facebook, Twitter, Instagram, or any of countless internet websites and blogs.  If you’re involved in a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim or insurance law claim, that information could compromise your case.

It is routine for opposing counsel in all types of cases to request this information as part of their pretrial investigation.  They want to know if you’ve posted anything anywhere online that contradicts any part of your claim.  They also want to know if there are any photos or videos of you doing things that you shouldn’t be doing or claim that you can’t do.

Judges increasingly allow opposing counsel access to this information, even if you’ve marked it as private in your online profile or settings.  To judges, your online musings, pictures, and video are as much fair game in a lawsuit as would be a diary, journal, scrapbook with photos, etc.  So odds are good opposing counsel will get this information whether you like it or not.

And that only covers opposing counsel’s attempts to come in through the front door.  As long as opposing counsel doesn’t communicate directly with you, they’re also free to view anything that you’ve left publicly available.  So opposing counsel may be poking around your internet persona and you won’t even know it until it’s too late.

The moral of the story is to avoid putting anything online that your common sense tells you will be used against you by opposing counsel.  Chances are good counsel will eventually get that information somehow.  And they’re guaranteed to try to use it.

Can You Refuse An Employee Drug/Alcohol Test?

As discussed in other posts here and here, Iowa Code 730.5 allows private employers to conduct workplace drug and and alcohol testing on current and prospective employees.   Iowa Code 730.5 gives employers the power to demand drug and alcohol testing and issue discipline, including termination, against employees who refuse to submit to testing.  This employment law raises a few questions.  First, can you ever legitimately refuse a drug test, such that your employer cannot discipline you for doing so?  Second, what exactly is a “refusal” under Iowa’s drug and alcohol testing law?

The only way that an employee can safely refuse a drug or alcohol test is if the test is not lawful or valid, meaning that the employer has no right to demand the test.  For example, I’ve noted that many employers are improperly insisting on post-injury testing under circumstances in which Iowa Code 730.5 doesn’t authorize such a test.   That’s an example of a situation in which, because the requested test is illegal, the employee can legally refuse the test without disciplinary repercussions.  But except for situations involving an illegal test request, employees generally don’t have a right to refuse testing and expose themselves to discipline if they do.

Determining whether there’s a “refusal” is a bit trickier.  Obviously, directly refusing the test, walking out on the test, or not showing up for the test are clear testing refusals.  There’s a gray area though between such overt refusals and lesser forms of possible refusal.  Neither Iowa Code 730.5 nor Iowa’s appellate courts have addressed the issue of whether anything less than a categorical refusal can constitute a refusal to submit to an employee drug or alcohol test.

I’m currently litigating a case involving a less-than-obvious refusal.  My position is that an “implied refusal” cannot be determined by arbitrary time limits or the like.  Instead, a court has to look at the employee’s actions regarding the test and all of the surrounding circumstances to determine whether the employee has implicitly refused a drug or alcohol test.  This will likely be a question that is later answered by the Iowa Court of Appeals or the Iowa Supreme Court.

Joint Versus Separate Employers Under Federal Overtime Law

Recent news reports indicate that local fire departments are under investigation by the United States Department of Labor, possibly for overtime violations related to the joint employer rule under overtime law.  Under federal law, someone can be an employee of separate and distinct employers; each of those employers can count the employee’s hours separately for purposes of determining whether the 40-hours per week threshold has been exceeded.  So you can work your regular full-time day job, and then pick up some extra hours at night working part-time somewhere else for a different employer, without your full-time employer having to count those part-time hours as overtime work.  That’s assuming the two are separate and distinct employers.

A problem occurs when those two employers aren’t separate and distinct, but are instead considered “joint employers.”  In that instance, all the hours worked for the joint employers are combined to determine whether the employee has exceeded forty total working hours in a given week for the joint employers.  If so, then the joint employers owe the joint employee overtime.

This may be what’s happening with the local fire departments.  Municipalities sometimes enter into agreements with each other to share resources, such as fire and rescue.  If that makes the fire departments “joint employers,” then all hours worked for both municipalities are combined for overtime purposes, rather than dividing working time between the two.  It seems that full-time firefighters for one city are working part-time, on-call hours for a different city under one of those sharing agreements.  The question is whether those working hours have to be combined, thus exposing both cities to potential overtime responsibility.

Determining whether two employers are a joint employer can be difficult.  The Department of Labor considers all of the facts in a particular case.  If the facts establish that two or more employers are acting entirely independently of each other and are completely disassociated with respect to the employment of a particular employee, they’ll be considered separate and distinct employers and the employee’s working hours will not be combined.  But if the facts establish that employment by one employer is not completely disassociated from employment by the other employer, then there may be joint employment and all of the employee’s working hours must be combined for overtime purposes.

The courts have devised an “economic realities” test to determine whether two employers are separate and distinct or instead joint.  Courts look at numerous factors in deciding whether joint employment exists, including whether the alleged joint employer had the power to hire and fire the employees, supervised and controlled employee work schedules or conditions of employment, determined the rate and method of payment, and maintained employment records.  The economic realities test is a fluid concept; different courts apply different standards and some standards apply to certain situations but not others.  But the above factors are the main ones.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Service Animals In Public Places — When Must They Be Accommodated?

In an earlier post I wrote about the rules for service animals on airplanes.  But what about service animals in public or commercial places, like restaurants and stores?  Under what circumstances must a business allow service animals inside to avoid a business practices claim?

This issue is governed by the Americans With Disabilities Act (ADA).  Businesses must follow rules that the United States Department of Justice issues about ADA compliance.  The DOJ has responsibility for implementing the provisions of the ADA.  Generally, businesses must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.

The starting question is — What is a service animal?  The DOJ now only recognizes dogs and miniature horses as service animals.  Usually, a service animal is a dog that is individually trained to do work or perform tasks for people with disabilities.  Service dogs are working animals, not pets.  The work or task a dog has been trained to provide must be directly related to the person’s disability.  Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

The requirements for service animals in public or commercial establishments have been broadly written to allow flexibility for all the various situations that may arise with service animals.  A one-size-fits-all approach would not work and would be impossible to apply to different types of establishments and different types of disabilities.  The only real constant is the fact that, under federal law, most service animals will be dogs.

The ADA requires state and local governments, businesses, and nonprofit organizations that serve the public generally to allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go.  A service animal must be harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work or the individual’s disability prevents using these devices.  In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.  Establishments that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises.  People with disabilities who use service animals cannot be isolated from other patrons, treated less favorably than other patrons, or charged fees that are not charged to other patrons without animals. In addition, if a business requires a deposit or fee to be paid by patrons with pets, it must waive the charge for service animals.

When it is not obvious what service an animal provides, only limited inquiries are allowed. Staff may ask two questions: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.  Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

Service Animals On Commercial Air Flights

A recent incident on a U.S. Airways flight involving a disabled veteran and his service dog has brought attention to the issue of service animals on  commercial flights.  The veteran was ejected from the flight because he refused to put his service dog on the floor in front of him.  Instead, he insisted that the dog be allowed to sit on an empty seat next to him.  This is a rare publicized episode of a business practices area of disability discrimination law (service animals on commercial flights) that has received scant attention from the courts.

A few starting points.  First, this is not a issue under the Americans With Disabilities Act (ADA).  Rather, this situation is covered by the federal Air Carrier Access Act (ACAA), which is interpreted by the U.S. Department of Transportation.  Second, although a moot point here because the passenger’s service animal was a dog, beginning March 15, 2011 the U.S. Department of Justice issued new rules under the analogous ADA that restrict the definition of “service animal” to dogs and miniature horses.  If the DOT follows suit in revising the ACAA’s rules, eventually only dogs and miniature horses will be allowed on planes as service animals, assuming there’s even a way to get a miniature horse on an airplane and keep it somewhere in the cabin.

So let’s focus on a common type of service animal, dogs.   The DOT’s rules currently state that a service animal is (i) an animal individually trained and which performs functions to assist a person with a disability; (ii) an animal that has been shown to have the innate ability to assist a person with a disability, e.g., a seizure alert animal; or (iii) an emotional support animal.  Airlines must permit dogs and other service animals used by passengers with a disability to accompany the passengers on their flights.  In addition, such passengers must be allowed to have their service animal accompany them to their assigned seat and remain there as long as the animal does not obstruct the aisle or other areas that must remain unobstructed for safety reasons.  Moreover, disabled passengers must be able to keep their service animals with them unless the animal poses a direct threat to the health or safety of others or presents a significant threat of disruption to the airline service in the cabin.

There are numerous decisions and considerations that are implicated by service animals on an aircraft.  Too many to address in a single post.  The main questions are (1) Is the passenger with the animal disabled?  (2) Is the animal a service animal or a pet?  (3) Can the service animal be transported in the aircraft’s cabin?

You might wonder why this is even an issue since most airlines allow dogs to travel with passengers in the aircraft cabin.  It has to do with the special considerations given to passengers with service dogs.  DOT rules require that the dog fly free, that the disabled passenger receive special seating consideration to accommodate the dog, and that the airline waive some requirements regarding when a dog can’t be transported in the passenger cabin (for example, size or weight restrictions).  Unfortunately, some people who aren’t disabled or who don’t have a true service animal lie in an effort to gain one or more of those special considerations to which they normally wouldn’t be entitled.

So who was right in the dispute between U.S. Airways and the disabled veteran regarding placement of his service dog?  Probably U.S. Airways.  To my knowledge, no federal court has ever issued a decision on whether a disabled passenger must be allowed to keep their service animal on an adjacent unoccupied seat.  But the DOT’s policy guidance concerning service animals in air transportation suggests that airlines can insist that service animals be placed in front of, not on a seat next to, a disabled passenger.  The DOT’s policy guidance specifically references placing service animals on the floor in  front of the passenger.  It also notes that airlines are not required to furnish more than one seat per ticket in order to accommodate a service animal, which implies that if a disabled passenger wants the service animal on the adjacent seat and the airline allows that, the airline can ask the disabled passenger to pay for the second seat.

Please feel free to contact me if you have any questions about service animals under the Americans With Disabilities Act or the Air Carrier Access Act.