EEOC press release re opioid medication and alleged disability discrimination

I have pasted below a June 29, 2018, press release from the EEOC. Keep in mind that the press release is only from the EEOC’s view – thus, the assertions in the press release should not be accepted as true, and you would want to see the employer’s viewpoint.

I am posting this press release not because of the facts of the specific situation (because we don’t know all of those facts) but as a reminder that a medication or drug issue might be a legally protected disability depending on the facts and circumstances. In this instance in relevant part the EEOC alleges that (1) the employee had a prescription for the medication, (2) there is no indication that the employee could not perform the job functions of his position, (3) the employee offered to cooperate with the employer, (4) a doctor of the employee offered to provide information, and (5) the employer is alleged to have not followed up with additional investigation (or whether possible reasonable accommodation was possible or even needed). But again, keep in mind that the press release only represents the EEOC’s viewpoint.

Best to you, David Tate, Esq. 

The following is the EEOC’s press release followed by a link to the press release.

Painting Company Fired Worker Because It Regarded Him as Having a Disability Due to His Drug Treatment, Federal Agency Says

HOUSTON – Steel Painters, LLC, a Beaumont, Texas-based painting company, unlawfully fired a worker because it regarded him as disabled and because of his record of a disability, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed today. The employee had been dependent on opioid medication in the past but was in recovery treatment.

According to the EEOC’s suit, a Steel Painters manager recruited Matthew Kimball for a journeyman painter position, and Kimball began work on a project for Steel Painters at a Silsbee, Texas plant on Sept. 19, 2016. Earlier this decade, Kimball sustained a shoulder and arm injury that required surgery and extensive physical rehabilitation. During his recuperation, he became dependent on prescribed opioid pain medication. At the time Steel Painters hired Kimball, he had been in a treatment program for over a year taking a dose of prescribed methadone at night after the work day, and he was gainfully employed in a similar painter position.

On his first day on the job, Kimball took the pre-employment drug and alcohol test required by Steel Painters, and he worked through the rest of the week. The following Monday, Kimball learned that the prescription medication he took caused the drug test to come back “positive.” However, after he provided the laboratory with a copy of his prescription and other documentation about his treatment, the laboratory cleared him to work.

Nevertheless, a Steel Painters human resources manager would not permit Kimball to return to his job. She demanded that Kimball have his doctor fill out a specific form and return it to the company. Kimball provided a letter from his doctor that detailed his treatment, and which invited the recipient to contact the clinic’s offices if more detailed information was needed. The human resources representative declared, “I’m not calling nobody,” the EEOC said. Even though Kimball offered to submit himself to a complete physical performed by a doctor of Steel Painters’ choosing, Kimball was told “you don’t have a job […] we have to terminate you.”

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities. The EEOC filed suit in U.S. District Court for the Eastern District of Texas, Beaumont Division (Civil Action No. 1:18-cv-00303) after first attempting to reach a pre-litigation settlement through its conciliation process.

The federal agency is seeking a permanent injunction prohibiting Steel Painters from engaging in any future disability discrimination. The EEOC is also seeking back pay on behalf of Mr. Kimball, and compensatory and punitive damages and other relief on his behalf, including rightful-place instatement to a suitable position at Steel Painters.

“Opioid addiction is a disability that is affecting millions across the United States, yet many are regaining control over their lives by participating in supervised rehabilitation programs,” said EEOC Houston District Director Rayford O. Irvin. “When a worker has a record of such a disability and is performing his job proficiently, an employer cannot lawfully preclude the worker from employment because he is receiving treatment for his addiction.”

Houston District Office Regional Attorney Rudy Sustaita said, “Enforcement of the ADA is a top priority of this agency. When an employer regards a worker’s impairment as preventing him from doing the job, but refuses to consult with the worker’s treating doctor and assess the worker’s ability to work, the company should expect that the EEOC will enforce the ADA and defend the employee’s rights.”

https://www.eeoc.gov/eeoc/newsroom/release/6-29-18a.cfm

 

 

Some Guidance For Workplace Investigations

The following are some comments as guidance for workplace investigations. We are seeing ongoing news about situations where investigations did not occur, and situations where investigations have been starting or are in progress, and also apparently where situations of alleged possible unlawful activity occurred or might have occurred but was not reported (although in some situations knowledge of possible unlawful activity might had been known). These issues don’t simply reflect on the accuser and the accused, but reflect on the business, nonprofit or governmental entity at issue, and, variously depending on the situation, elected representatives, executive officers, boards of directors and the board committees, general counsel, compliance and ethics professionals, HR, employees, perhaps internal audit and even the external auditor, etc., and throughout the entire organization or entity.

An employer has a duty to take reasonable steps to prevent harassment, discrimination, and unlawful employment practices, and to correct inappropriate workplace behavior. See, e.g., California Gov. Code §12940(k); and 29 CFR 1604.11(d). An employer can be liable for the failure to investigate, at least if there was underlying unlawful activity. And a failure to investigate can be considered ratification of unlawful activity.

In appropriate circumstances on a claim of wrongful termination, the question can become whether the employer acted appropriately and in good faith after conducting a reasonable investigation and based on a reasonable belief in that investigation – in other words, the reasonableness of the employer’s investigation can become the standard by which the employer is judged for alleged wrongful termination liability purposes.

The following are some of the issues and steps to consider or follow when determining whether an employer’s investigation of the conduct and situation was reasonable, and whether the employer had a reasonable belief in that investigation – did the employer or entity:

  • Take the complaint of wrongdoing seriously;
  • Maintain confidentiality of the situation to the extent reasonably possible;
  • Conduct a timely investigation, promptly after receiving the complaint of wrongdoing;
  • Decide and appoint an appropriate sufficiently independent and qualified person or committee to oversee the investigation, and for decision-making;
  • Consider whether the investigator will be someone in-house or from outside the entity;
  • Have the investigation performed by an investigator who is competent and knowledgeable about the relevant issues, and also how to conduct (and evaluate) investigations, investigation techniques, evidence (including, e.g., credibility, admissibility, and whether the evidence or possible evidence is “A” or “B” or “C” evidence), writing reports and opinions, and oral communications and testimony, and also note issues that might be present if the investigation is performed by an attorney for whom attorney client or work product privileges might be claimed – in short, work these issues out before the investigator is selected;
  • Consider legal counsel and possible other assistance needed;
  • Follow appropriate complaint investigation procedures;
  • Listen to and treat the difference sides fairly and equally;
  • Obtain, evaluate and understand the claims that are being made and possible defenses – including, e.g., claims based on a statute or section of law, a regulation, or a rule, and also claims based on some other standard such as any applicable policy, handbook, code of conduct, contract, collective bargaining agreement, etc. that had been enacted or adopted;
  • Provide the accuser with ample opportunity to offer evidence of his or her claims including what occurred or not, documents that might be relevant, and the names of and information about witnesses who he or she believes can provide relevant comments about the alleged occurrence(s);
  • Give the alleged wrongdoer fair notice of the claims being made;
  • Provide the alleged wrongdoer with ample opportunity to offer evidence in his or her defense, including what occurred or not, documents that might be relevant, and the names of and information about witnesses who he or she believes can provide relevant comments about the alleged occurrence(s);
  • When appropriate, provide and communicate an appropriate means whereby third parties can provide information that is relevant to the issues and the investigation;
  • Have the investigator conduct a thorough investigation, under the circumstances (note that in some circumstances courts have held that the investigation need not necessarily be perfect, but it should be sufficient, reasonable and thorough under the exigencies and circumstances at hand without the benefit of full discovery or a trial);
  • Have the investigator prepare a well-reasoned report and conclusions, supported by and based on objective evidence;
  • Have the investigator report to the decision-making person or committee;
  • Have the decision-maker or committee prudently and appropriately evaluate the claims, defenses and investigation; and
  • Implement progressive discipline if appropriate?

Of course, each situation is different, and for some of the above points the courts and regulatory agencies have provided additional guidance.

Best to you, David Tate, Esq.

Disclaimer. This post is not a solicitation for legal or other services inside or outside of California, and also does not provide legal or other professional advice to you or to anyone else, or about a specific situation – remember that laws are always changing – and also remember and be aware that you need to consult with an appropriate lawyer or other professional about your situation. This post also is not intended to and does not apply to any particular situation or person, nor does it provide and is not intended to provide any opinion or any other comments that in any manner state, suggest or imply that anyone or any entity has done anything unlawful, wrong or wrongful – instead, each situation must be fully evaluated with all of the evidence, whereas this post only includes summary comments about information that may or may not be accurate and that most likely will change over time.

California AB 2888 – Gun Violence Restraining Orders – Proposed Law Authorizing Employers, Coworkers, And Employees Of Schools To Petition

New California legislation proposes to amended already existing California Penal Code gun violence statutes to also allow, but not require, employers, coworkers, and employees of certain secondary and postsecondary schools to petition a court ex parte or by noticed motion to obtain a restraining order against a person who they believe, upon sufficient evidence, is a threat to commit violence with a gun. California AB 2888 is proposed – it is not yet law – but it is worth noting anyway.

Although the proposed legislation states that the law would not require such an employer, coworker, or employee to petition for a restraining order, the question still arises whether an employer, or a managing agent employee of the employer, or a managing agent employee of the school, might still be required, upon sufficient evidence, to bring or to cause the employer or school to bring such a petition under employer or school duties to make the workplace and school place safe? More to follow if the proposed law moves forward.

The following is a copy of the portion of the current proposed legislation authorizing the bringing of an ex parte petition. Also note that the applicable statutes do provide additional somewhat detailed guidance and requirements, including the required evidentiary burden of proof. A question or issue also might arise whether an employer or person bringing such a petition might have liability exposure for wrongfully doing so or for bringing such a petition that the court then decides to deny.  Best to you. David Tate, Esq.

 

 

Organizational Values: The Most Underutilized Corporate Asset – forwarding from Eugene Dilan/Dilan Consulting and Next Concept HR Association

I have provided below a link to an discussion by Eugene Dilan of Dilan Consulting – the discussion is posted to the Next Concept HR Association (previously NCHRA) website. As you know from some of my prior posts, from time to time I am covering the developments of “culture” as an area of executive officer responsibility, board oversight, and enterprise risk management (ERM), and the involvement of HR and possibly of internal and external audit, social media, compliance, and legal counsel, in addition to other people. Mr. Dilan comments that organizational values guard culture, but that this is an underutilized corporate asset.

A side issue or comment, this week I also attended a seminar discussion put on by the Rock Center for Corporate Governance and the Silicon Valley Directors’ Exchange at Stanford University. The topic was “The Board’s Role in Innovation and Strategy.” It was also a very good discussion; however, the discussions did not directly cover values or culture. But it is clear that there is no generally agreed upon standard or amount of involvement for board oversight of areas such as innovation, strategy, values or culture. In fact, whereas, for example, some boards already have innovation or new technologies committees, but this is not anywhere near a standard fact or situation. And although there has been a fair amount of recent talk about oversight of organizational culture, again there are no generally accepted approaches to that oversight.

Below is the link for Eugene Dilan’s discussion about organizational values from the Next Concept HR Association (HR West Blog) – it is recommended reading – and best to you, David Tate, Esq.

http://hrwest.org/organizational-values-the-most-underutilized-corporate-asset/

And here is the link for Next Concept HR Association – http://www.nchra.org/

 

Looking to Engage, Empower, Achieve, or Improve, and Processes or Structure – Risk Management and COSO 2017 Enterprise Risk Management (ERM) Should Interest You

This post might also be called: why risk management should interest you as an employee, employer, student, educator, product or service provider, executive officer, director, or anyone who is trying to achieve or improve something.

I read a fair number of articles discussing the benefits of engaging and empowering employees and other people. But I see far fewer articles discussing a structure or processes for when employees or people are empowered or engaged. Let me suggest that you use risk management and the COSO 2017 enterprise risk management (ERM) framework to add structure or processes to your engagement, empowerment, etc.

Risk management and the COSO ERM framework are premised on identifying objectives, and then designing and implementing steps, or actions, or processes, or tasks to succeed in satisfying those objectives. So, just as examples, the framework can be used if you are dealing with a product or a service and if you are an employer, or an employee, or a supplier or vendor, or if you are an educator or a student, or if you are putting on an event or you are going to be a presenter at an event, or whatever, etc. And the framework can be used, as examples, to design or make a better or successful design, product, service, event, presentation, innovation, or learning experience, or to increase safety, or to increase efficiency or effectiveness, or to better get your message or point across, or to increase engagement and empowerment, or whatever, etc.

Most likely you already do some form or manner of risk management or enterprise risk management for some objectives, or perhaps for many objectives. Sometimes risk management is required, such as the requirement that boards and audit committees engage in oversight of risk management for at least some business entities, which also of course means that the entity must have some manner of risk management to oversee. And sometimes risk management process are required for certain specific products, services, industries, or other situations, and may also involve compliance with laws, statutes, regulations, rules, etc.

Risk management and enterprise risk management should be integrated into the organization’s regularly, ongoing and constant day-to-day activities and decision making processes to achieve strategies, objectives and tasks successfully – risk management and enterprise risk management should not be viewed as separate or standalone processes that occur only on an occasional or periodic basis.

Here is a link to the COSO enterprise risk management page, https://www.coso.org/Pages/erm.aspx

Below see also my Overview Of A Risk Management Process That You Can Use, a listing of the COSO Enterprise Risk Management (ERM) framework components and principles, and a summary of the framework implementation tiers (i.e., the extent to which an entity has implemented risk management) for the National Institute of Standards and Technology (NIST) Framework For Improving Critical Infrastructure Cybersecurity.

David Tate, Esq.

 

 

 

HR and Internal Audit – Both Trying to Earn More Respect and a Place at the Table – Suggestions . . . .

I have provided below two links, one to an article by the Society for Human Resource Management (SHRM), and the other by Internal Audit 360.

The SHRM article discusses HR’s desire for a place at the C-Suite table, the difficulties that HR is having getting there, and suggestions that might help.

The Internal Audit 360 article discusses the possibility of Internal Audit becoming involved in auditing (internally) the status of sexual harassment and culture at the entity. For years I have read articles about Internal Audit wanted to become more useful, valued and respected, and to become more than a function that audits after the fact.

HR is instrumental for day-to-day operations, and is looking for a seat at the C-Suite table. HR is or has the opportunity to be involved with the culture of the entity.

Internal Audit generally isn’t thought of as being instrumental for day-to-day operations, but Internal Audit should already have an invitation to help the Audit Committee with its oversight responsibilities; should already meet with, report to and in some manner help the C-Suite; and might meet with the Board. Nevertheless, Internal Audit is primarily thought of as a function that audits financial operations, internal controls, fraud and sometimes aspects of risk management. The new 2017 COSO ERM (enterprise risk management) framework lists culture and governance as the first and most important components of enterprise risk management. Thus, the door might be open for Internal Audit to become involved in (internally) auditing culture and the various aspects of culture. You will find more of my prior posts about 2017 COSO ERM and risk management processes at http://lawriskgov.com

I have suggestions for HR. Read the SHRM article linked below – it is a good article, with at least broad suggestions to better help HR position itself as a valued function and get to the C-Suite table. Additionally, I suggest that HR also at the same time aim for meeting with the Audit Committee or Risk Management Committee, and the Board, on issues relating to “culture” and the Company’s reputation with employees and as an employer – and also promote, promote, promote yourself. Directors are interested in the entity’s culture and reputation as an employer, at least currently, and hopefully on into the future.

I also have suggestions for Internal Audit. Read the SHRM article. And, if you want to be involved in the internal audit of culture, governance, risk management processes, sexual harassment, or similar issues, actions and activities, get busy establishing your qualifications and knowledge in those areas, develop criteria and an audit plan in at least one (or more) of those areas that will provide worthwhile value to executive management and Directors – and promote, promote, promote yourself.

HR and Internal Audit might also consider discussing together areas of similar interest with a view toward combining or collaborating their different but compatible strengths and areas of experience.

Here is the SHRM article. SHRM – for HR – How to Earn the Trust of Your CEO – HR is Losing the Confidence of the C-Suite, click on the following link for the discussion, https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/hr-is-losing-the-confidence-of-the-c-suite-.aspx

Here is the Internal Audit 360 article. Internal Audit 360 – sexual harassment issues rooted more in culture than policy, click on the following link for the discussion, https://internalaudit360.com/sexual-harassment-issues-rooted-more-in-culture-than-policy/

Best to you, David Tate, Esq. Royse Law Firm, with offices in northern and southern California

The following is a summary of the 2017 COSO ERM framework components:

COSO Enterprise Risk Management Framework ERM Components and Principles

Additional materials of interest:

Audit Committee 5 Lines of Defense 10222017 David W. Tate, Esq. jpg

 

NIST Cybersecurity Framework Tiers Summary

The Business Judgment Rule

In summary, as a general principle the business judgment rule provides that a director should undertake his or her duties:

-In good faith, with honesty and without self-dealing, conflict or improper personal benefit;

-In a manner that the director reasonably believes to be in the best interests of the corporation and its shareholders; and

-With the care, including reasonable inquiry, that an ordinarily prudent person in a like position with like expertise would use under similar circumstances. The rule itself doesn’t require a particular level of expertise, knowledge or understanding; however, as you might be aware, public company audit committee members do have such a requirement, and you can at least argue that, depending on the facts and circumstances, a board or committee member should have or should obtain a certain unspecified level of knowledge or understanding to be sufficiently prepared to ask questions, evaluate information provided, and make decisions.

Reliance Upon Other People Under the Business Judgment Rule

In the course and scope of performing his or her duties, a director must necessarily obtain information from and rely upon other people. An independent director is not involved in the day-to-day operations of the business. The director provides an oversight function. Pursuant to the business judgment rule, a director is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, prepared or presented by any of the following:

-Officers or employees of the corporation whom the director reasonably believes to be reliable and competent in the relevant matters;

-Legal counsel, independent accountants or other persons as to matters that the director reasonably believes are within the person’s professional or expert competence; or

-A committee of the board on which the director does not serve, as to matters within that committee’s designated authority, so long as the director acts in good faith, after reasonable inquiry as warranted by the circumstances, and without knowledge that would cause reliance to be unwarranted.

 

We need a new push for civility in how we communicate with, and in how we physically and mentally treat each other – audio and text

Note: I originally posted this to http://lawriskgov.com on November 21, 2017 – it certainly is still relevant today!

See audio and text of this post below.  David Tate, Esq.

Audio:

 

Text:

Hello, I’m David Tate. I’m a California litigation attorney, and I also handle governance and risk management.

We need a new push for civility in how we communicate with, and in how we physically and mentally treat each other.

Do these ring a bell:

Name calling;

Gross hyperbole, unsupported assertions, or mischaracterizations; or

Destructive talk for no other purpose except to denigrate, disparage, vilify, belittle, bully or demonize the other person or argument?

This is a tough topic because generally, and constitutionally people are entitled to their right of opinion, expression and communication or speech, and the manner in which they do it – people legitimately do express themselves and act in different manners, as long as it isn’t unlawful.

And people are entitled and encouraged to advocate for their positions. Indeed, if you don’t advocate, your voice will not be heard.

Censorship, and regulating speech in general, are not the answer as they can tend to lead to oppression or at least suppression of speech, ideas, information and communication.

Often there is no clear bright line over which people should not cross in their communications. Sometimes those issues end up in court before a jury.

I’m just saying that with all-the-time, instantaneous 24-hour news and social media, and with what I am hearing and seeing daily, it seems clear that we need a new push for civility in how we communicate with, and in how we physically and mentally treat each other.

And I would like to see all of us, including people who are in positions of leadership or power, and who should have integrity, make that push and encourage others to also do so.

Who knows, maybe there will be a new interest in teaching and learning oral and written communication and persuasion methods and techniques, and in spotting false, misleading or unsupported techniques and arguments.

That’s all for now. You need to consult with an attorney or appropriate professional about your situation. This blog post or video or audio is not an advertisement or solicitation for services inside or outside of California. Thanks for listening, reading or viewing.

David Tate, Esq., Royse Law Firm, Menlo Park, California office, with offices in northern and southern California. http://rroyselaw.com