Tag Archives: technology

Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

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Filed under ADAAAA, civil rights, courts, Disability, discrimination, employment, federal, labor, legal decision, technology, Title VII

E-Mails and NRLB: Do Employees Have Rights?

On April 30, 2014, the NLRB announced that it is considering overturning Register Guard, 351 NLRB 110 (2007), enfd. in relevant part and remanded sub nom, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).

The issue resolves around the current existing law that states:

Employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.

The NLRB is requesting amici briefs that address the following questions:

  1. Should the Board reconsider the conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communication systems) for Section 7 purposes?
  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communication systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to the be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
  5. Identify any other technological issues concerning email or other electronic communication systems that the Board should reconsider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

 

The briefs are due on or before June 16, 2014 and cannot exceed 25 pages.

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Filed under attorneys, briefs, civil rights, electronic discovery, employment, federal, labor, legal decision, NLRA, NLRB, rules, Section 7, union

Cops to Get Facial Recognition Devices

Police departments in several states are getting new high-tech devices that can scan irises, recognize faces and collect fingerprints.The devices, made by BI2 Technologies, are attached to an iPhone for immediate searches of criminal databases, the Wall Street Journal sub. req. reports.

The development is “raising significant questions about privacy and civil liberties,” the story says.Currently the technology, called “Moris” for Mobile Offender Recognition and Information System, is used by the military to identify insurgents. But B12 has contracts to sell about 1,000 of the Moris devices to 40 police agencies, the story says.The Wall Street Journal interviewed George Washington University law professor Orin Kerr about the legal implications. Generally, police can take pictures of anyone in a public space. But after an officer stops or detains someone, police need “reasonable suspicion” to take fingerprints.Whether a warrant will be needed to use facial recognition or an iris scan is “a gray area of the law,” Kerr said. “A warrant might be required to force someone to open their eyes.”

via Cops to Get Facial Recognition Devices; Will They Need Warrants to Use Them? – News – ABA Journal.

 

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Filed under civil rights, electronic discovery