Bland Industries likely violates the FMLA and ADAAA by refusing Emily's request for a week of leave due to her asthma worsening at work. Under the FMLA, Emily may be eligible for protected leave if Bland has over 50 employees and Emily has worked there for over a year and 1,250 hours. The ADAAA also requires employers to provide reasonable accommodation such as leave for disabilities like asthma that limit major life activities like breathing. Bland should engage in the interactive process with Emily to discuss potential accommodations instead of threatening to fire her for needing leave.

1. The Emerald Series
Emily’s Road to the Ideal Workplace
Segment One
Eric E. Packel, Andrew Cripe, Elizabeth Gross,
Emma Schuering, Teeka Harrison

2. The Emerald Series
• Emily’s Road to the Ideal Workplace.
• 4 Segments.
• Who is Emily?
• New entry into the workplace.
• Emily’s first stop is to work at a warehouse
and distribution center at Bland Industries.

3. Phone Call with Rachel
Rachel: Emily, it’s Rachel from High School. I heard you
moved to town?
Emily: Hey Rachel, yes I did. Wow, what have you been up
to?
Rachel: Girl, you don’t even want to know.
Emily: Is the family okay?
Rachel: Oh they’re fine. I just had a really crazy year a
couple of years ago with a friend of mine. She’s whack
though.
Emily: Oh. So do you know of any good places to work in
the City?
Rachel: (under breath) Oh Lord, here we go again.

4. Phone Call with Rachel
Emily: What?
Rachel: Oh nothing. I just coughed. (under breath) God help me.
Emily: What’s the name of the place?
Rachel: What?
Emily: A place to work.
Rachel: I don’t know, Emily. Do you have any ideas?
Emily: Just a good place to start I guess.
Rachel: Well there’s a place called Bland Industries. I hear they are pretty
good. Just a basic place, nothing too exciting, if that is what you want
Emily: That sounds like a good place to start. Thanks Rachel!
Rachel: God help me.
Emily: What was that?
Rachel: Uhhh, good luck.

5. Emily’s Next Steps
 Emily applies at Bland Industries.
 As part of process, Emily completes a
background authorization form.

6. Emily’s Background Check

7. The Fair Credit Reporting Act
(“FCRA”), 15 U.S.C. § 1681a et seq.
 Covers more than just “credit reports.”
 If an employer wants to use a “consumer
report” for “employment purposes,” series
of specific steps must be followed.

8. Definition of Consumer Report
“[A]ny written, oral, or other communication
of any information by a consumer reporting
agency bearing on a consumer’s credit
worthiness, credit standing, credit capacity,
character, general reputation, personal
characteristics, or mode of living which is
used…in whole or in part for the purpose of
serving as a factor in establishing the
consumer’s eligibility for…employment
purposes…”

9. Step 1: Disclosure and
Authorization
Before a consumer report is “procured” or “caused to
be procured,” the employer must:
 Make a clear and conspicuous written disclosure
that a consumer report may be obtained for
employment purposes in a document that consists
solely of the disclosure, and
 Obtain the applicant’s authorization
– Preferably in writing
– “Blanket authorizations” okay

10. Step 2: Report and Rights
 What if Bland receives the report from a CRA and it
contains negative information?
 Prior to taking any adverse action based on information
contained in a consumer report, Bland must provide to
Emily a “Pre-Adverse Action” notice, containing:
– Copy of the Report
– Summary of Rights Under the FCRA
– Provide the name, address, and telephone number of the
CRA that provided the report (though this will likely be
clear from the report itself)

11. Step 3: Time to Dispute
 Employers must allow applicant a
reasonable time to dispute information in
consumer report.
 5-7 business days is generally sufficient, but
“reasonableness” of time depends on
circumstances.

12. Step 4: Take Adverse Action
 Take the adverse action and give the
applicant notice of:
– Name, address, and phone number of the CRA
(again)
– Statement that the CRA did not make the
adverse employment decision
– Right to dispute the information
– Right to get an additional free report from the
CRA within 60 days

13. Emily’s Background Check

14. Phone Call
Mr. Bland: Emily, we are happy to have you here.
Emily: Thank you, Mr. Bland. I read some of the Handbook, but I didn’t see
anything about vacation time or pay.
Mr. Bland: Well, we are working on updating that. We just haven’t had time.
Emily: But it’s dated 2005.
Mr. Bland: Well like I said, we’ve been meaning to look at that but the laws
haven’t really changed.
Emily: I was interested in the clocking in part – I didn’t see a timeclock.
Mr. Bland: We didn’t want to make things too complicated. Just write your
time down. I mean, your hours are 8 to 5 so a lot of people just write that
down.
Emily: What about overtime though?
Mr. Bland: Oh, we don’t allow overtime so that’s not a problem.
Emily: Ohhhhkaaaay.

16. Workforce Policies
 Why/When Written Policies?
 What Must You Include?
 What Needs Updating—and Why?

17. Written Policies? The Basics
 Define Expectations/Culture
 Help Avoid Certain Contract Claims
 Can Help Provide A Good Defense
 Comply with Law

18. Certain Policies are “Musts”
 Anti-Harassment/EEO/anti-retaliation
 FMLA
 Confidentiality
 Open Door/Hotline
 Drug/Alcohol
 No Right to Privacy/Monitoring
 Wages/OT
 “Musts” expand with Company

19. Certain Policies are Nice to
Have
 Will depend on business
needs & culture:
 Vacation/sick leave, PTO
 Code of ethics & business
conduct
 Standards of personal
conduct (dress code,
attendance, etc.)

20. Modern Policies
 Firearms policies
 Social media policies
 Workplace violence prevention (and domestic
violence leave)
 Drug testing and medical or legal marijuana
 Compliance complaint and investigations
processes & hotlines (a challenge at start up!)

21. Remember Section 7
 Section 7 provides that
“employees shall have the
right to self-organization,
to form, join, or assist
labor organizations, to
bargain collectively . . .
And to engage in other
concerted activities for the
purpose of collective
bargaining or other
mutual aid or protection.”

22. Confidentiality
Not OK:
-”Do not discuss ‘customer or
employee information’ outside
of work including ‘phones
numbers and addresses”
-”Never publish or disclose
confidential or other
proprietary information.
Never publish or report on
conversations that are meant
to be internal”
OK:
-”No unauthorized disclosure
of ‘business secrets’ or other
confidential information”
-”Do not disclose confidential
financial data, or other non-
public proprietary company
information. Do not share
confidential information
regarding business partners,
vendors or customers”

23. Interaction with Third Parties
(including media)
Not OK:
-”Employees not authorized to
speak to representatives of the
print and/or electronic media
about company matters”
“unless designated to do so by
HR, and must refer all media
inquiries to the company
media hotline”
-”If you are contacted by any
gov’t agency you should
contact the Law Dep’t
immediately for assistance”
OK:
-”The company strives to
anticipate and manage crisis
situations in order to reduce
disruption to our employees
and to maintain our reputation
as a high quality company. To
best serve these objectives,
the company will respond to
the news media in a timely
and professional manner only
through the designated
spokespersons.”

24. Company Logos, Copyrights
and Trademarks
Not OK:
-”Do not use Company logos,
trademarks, graphics, or
advertising materials in social
media”
-Company logos and
trademarks may not be used
without written consent”
OK:
-”Respect all copyright and
other intellectual property
laws. For company’s
protection (and your own), it is
critical that you show proper
respect for the laws governing
copyright, fair use of
copyrighted material owned by
others, trademarks and other
intellectual property, including
Employers, copyrights,
trademarks and brands”

26. Phone call regarding Asthma
Emily: Mr. Bland, I have been sneezing and coughing
since I inhaled that weird dust. My doctor said it has
made my asthma worse.
Mr. Bland: Were you wearing a mask?
Emily: Yes.
Mr. Bland: Well that’s about all we can do, Emily.
Emily: My doctor says I need to take some time off.
Mr. Bland: Emily, you just started a month ago. We
can’t afford for you to be gone.
Emily: But my doctor said I need to take a week off.

27. Mr. Bland: Emily, you haven’t been here long
enough. You don’t qualify for FMLA – there’s
nothing we can do.
Emily: Can’t I just take personal leave?
Mr. Bland: You don’t have any yet. It’s too bad
but there’s nothing we can do.
Emily: Well that’s just poppycock!
Mr. Bland: You either need to work or we’ll have
to separate you. Sorry.
Emily: This stinks!
Phone call regarding Asthma

28. FMLA Eligibility and
Bland Industries
 Is Bland a “covered employer”:
– Private sector employer with 50 or more employees
 Has Emily:
 Worked for a covered employer in any employing
office (with 50 or more employees within 75-mi
radius) for at least 12 months, which need not have
been consecutive
 Worked at least 1,250 hours during the 12-month
period preceding the start of leave

29. FMLA Protection
 Requires protected leave up to 12/26 unpaid
weeks
– Birth/adoption/placement of child
– Employees own serious health condition
• Prevents them from performing essential job functions
– Care for immediate family member with serious
health condition
– Military leave
• Qualifying exigency
• Military caregiver leave (26 weeks)

30. What about the ADAAA?
 ADAAA
– Prohibits discrimination on the basis of disability
and requires reasonable accommodation
– Applies to employers with 15 or more
employees
– After 2008 Amendments, requires employers to
construe the term “disability” more broadly in
favor of finding a disability.

31. ADAAA
 Disability
– Physical or mental impairment that substantially limits
one or more major life activities,
– Record (or past history) of such an impairment, or
– Regarded as having a disability
 Physical or Mental Impairment
– Physical or mental condition affecting one or more body
systems, such as cardiovascular or neurological.
– New: immune and circulatory systems

32. ADAAA
 Substantially Limits
– Impairment no longer needs to prevent or severely or
significantly restrict a major life activity
 Major Life Activity
– Caring for oneself, manual tasks, seeing, hearing eating,
sleeping, walking, working, etc., and operation of major
bodily functions, such as cell growth, digestive, brain,
respiratory.

33. ADAAA
 ADA Interactive Process
– Reasonable accommodation assessment
• Supporting medical documentation
• Job description – essential job duties
• Second opinions
– Undue hardship assessment

34. ADAAA
 Alternative Accommodations
– Job Restructuring
– Modified Work Schedules
– Limited Duration Light/Modified Duty Assignment
– Reassignment to a Vacant Position
– Acquisition of or Modification to Equipment or Devices
– Leave (including beyond FMLA)

35. Other considerations?
 Workers’ Compensation
 Employer Leave Policies
 STD/LTD
 Equal or better treatment than employees
taking non-medical leaves

36. NEXT TIME!
 “Get to Work (Off the Clock) and Don’t
Compete!”
 Emily works for Mr. Grumbles, a difficult and
overbearing employer.
 Issues will include off the clock, non-
compete and employing undocumented
workers
 SAVE THE DATE -- MAY 8, 2018

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