When you have been practicing law as long as I have (forty years!), patterns emerge if you pay attention. Owners, managers, and employees long believed that the “boss” of the business had the right to set expectations and, if employees wanted to work for that business, they had to comply or find another job. This concept – reflected in the doctrine of “employment at will” – led many to believe that the only way to balance the playing field at a company was to get the workers to unionize. Then – and only then – could workers demand an equal say in the terms and conditions of employment.
The rise of “minimum standards” legislation beginning in the 1930s and accelerating in the 1940s, ‘50s and ‘60s eroded the “at will” employment doctrine. Minimum wage and overtime standards, occupation safety and health requirements, and anti-discrimination mandates should have made clear that workers could say, to even the “boss,” that “you are not the boss of me.”
Throughout my time as a defense attorney, I consistently counseled my clients about this changing landscape and philosophy. Many commentators and others questioned my belief that under this evolving new workplace standard, employers always had to be prepared to show “just cause” for every adverse employment action. Now that I am also able to represent employees who have been denied their rights, I aggressively seek to educate employees and employers about their rights and obligations.
A recent complaint issued by the Equal Employment Opportunity Commission (“EEOC”) presents a powerful reason for the “My-Way-or-the-Highway” advocates to reconsider their approach and for employees to assert their rights. In EEOC v. PACE Southeast Michigan, the EEOC sued a Michigan nursing home for violating the Americans with Disabilities Act (“ADA”) when it terminated two employees who were unable to return to work following approved medical leaves. The employer’s policy seems to have been that once the employee exhausted available leaves of absence, any continued absence would be deemed a voluntary resignation. In its complaint, the EEOC alleges that this policy – return to work or resign – amounted to a violation of the ADA because PACE did not engage in an additional post-leave-of-absence “interactive” process. Alternatives to resignation not only might be job accommodations (such as removing non-essential duties or giving support to permit the employee to complete job tasks) but also could include reduced work hours, split shifts, or even grant additional unpaid leave.
In fairness, the EEOC’s complaint against PACE has not been substantiated. Even so, the EEOC’s position does not surprise me. The EEOC has long advocated for the expansion of legal doctrines to “level” the playing field between “bosses” and “employees.” The EEOC’s approach in the PACE Litigation aligns with other cases where the EEOC has made clear it will not approve private settlement agreements resolving EEOC charges if those agreements prohibit the worker from discussing their workplace concerns. In my experience, the EEOC routinely rejects settlement agreements that contain confidentiality obligations, “non-disparagement” provisions, or bans on re-applying for future employment.
I will simply say that those who long for the day when the boss could tell employees “its my way or the highway” will have to look in the rearview mirror.
Hat Tip to Fox Rothschild LLP for bringing this complaint to our attention. See also Original Post.