It’s that time of year again! Yes, it’s the season to be thankful and there are many holidays on the horizon. And it is also the time where we are overflowing with gatherings and activities for all our organizations and groups. I love the opportunity to connect with our friends and clients and learn and collaborate about all things employment law and everything in between! Here are some highlights:
This past month, I spoke at the Arizona Hospitality Human Resource Association meeting with my colleague, Lisa Coulter. The great thing about this group is it is a perfect excuse to check out amazing hotels around the valley while meeting with other colleagues in the HR industry. This meeting was at the Marriott Renaissance Phoenix Glendale Hotel and Spa. It was a perfect location for the meeting and for those traveling to the Cardinals’ football games.
Anyway, back to the HR stuff. We chatted about The Winding Road of the FMLA and ADA – which I also presented to some Snell clients back at the Employment Toolkit. One creative lawsuit we discussed is Robinson v. Carealliance Health, (D. S.C. 2014). In this case, an obstetrician at a hospital could not remain standing through deliveries due to a broken foot and wanted to perform deliveries and surgeries sitting down. The hospital medical staff suspended his privileges and began an investigation into whether he was competent to perform surgeries. He sued under Title III of the ADA – which requires a place of public accommodation to reasonably accommodate a person with a disability. He didn’t sue under Title I because he is not an employee – he is a contractor. The hospital’s motion to dismiss was denied, and the court explained that Title III is not limited to customers. This case seemed so interesting because typically you only think about the duty to accommodate as it relates to employees – not independent contractors. This case suggests – in that jurisdiction, at least – that companies may need to start considering about whether Title III of the ADA provides any protections to independent contractors.
We also talked about curbing abuse of the ADA - as it seems like we usually focus so much on FMLA abuse. One area companies oftentimes evaluate is whether an employee can/should be able to randomly miss work whenever they need to do so, as an accommodation. There are many examples where administrative employees may not necessarily need to be present and can call in last minute. There are other instances where employees are needed or the rest of the team simply cannot function. Here is one example of a case regarding a neonatal nurse who needed to miss work randomly for her condition and the company was justified in finding that it could not accommodate this request.
“An accommodation that would allow [the employee] to ‘simply . . . miss work whenever she felt she needed to and apparently for as long as she felt she needed to [a]s a matter of law . . . [is] not reasonable’ on its face.”
Samper v. Providence St. Vincent Medical Ctr., 675 F.3d 1233, 1240 (9th Cir. 2012).
And then, last week, was the meeting for the National Association of Women in Construction (NAWIC), Phoenix Chapter. We heard from Tauny Woo, the Chief of Engineering and Programs at Luke Air Force Base. The mission at Luke AFB is currently transitioning to accept new Lockheed Martin Joint Strike Fighter (JSF) F-35 aircrafts. This NAWIC group is filled with women from a variety of companies in the construction industry. One area we discussed was the male:female ratio of women in the industry and Ms. Woo’s experience as a woman in the engineering field. It was fantastic to have a leader such as Ms. Woo share her thoughts and I would definitely recommend this group (which I recently joined) to others as well in the industry. [As a side-note, I am a member of my firm’s Women’s Initiative Committee, which was formed as part of our firm’s ongoing commitment to addressing issues and opportunities regarding women in the law on a firm-wide basis. I would encourage all organizations to continue evaluating, as we have done, all aspects of your organization. It is amazing to see what getting some great minds in a room can do.]
And just because I am little behind on my postings – I’ll mention the Fall Seminar in Sedona which is sponsored by the Labor and Employment section of the State Bar. I write about these events fairly often, as I am on the Executive Council of the L&E section of the State Bar, and this particular one is always a solid turnout and represents a great cross-section of attorneys from our state. I actually could only make it to the Friday portion, but am glad I made the trek to Sedona. The schedule was completely packed from beginning to end.
The case study in computer spoliation was phenomenal. It was a great reminder that almost everything can be retraced and uncovered. Just because a party says they deleted an important document does not mean the inquiry necessarily has to stop there.
The restrictive covenants update was really helpful because, as a practitioner, there has been a lot of discussion of Orca v. Noder – both the Arizona Court of Appeals decision, and the recent Supreme Court of Arizona decision issued two weeks ago. The Court of Appeals decision served as a great reminder to ensure that noncompetes and confidentiality agreements are narrowly tailored to a protectable interest. The Supreme Court of Arizona decision tackled the preemption issue- whether the Arizona Uniform Trade Secrets Act (AUTSA) displaces/preempts all common law claims arising from the misuse of confidential or proprietary information. (The court held no, it doesn’t). I always appreciate discussions regarding restrictive covenants as I think it is important for practitioners and companies to always evaluate and reevaluate their strategies to protect their most important assets.
That’s it for now. I hope everyone had a great Thanksgiving weekend.