“Whoever said winning isn’t everything
wasn’t fighting cancer.”

– Author Unknown

ACTUAL CASE HISTORY: Theresa, 48, an experienced Architectural Draftswoman, was seeking to return to the workforce after not working for four years. After hearing of a job opening at a large architectural firm for which she seemed perfectly suited, Theresa submitted her resume, and she was soon asked to come for an interview.

Theresa responded quickly, and after two interviews that went extremely well, she was told that the partner in charge of hiring for the job was her only remaining step. Unfortunately, that interview was unusual for its focus, from the first moment to the last, on her reasons for being out of the workforce for four years.

After several rather penetrating questions about the reasons for her being out of work for four years, Theresa felt she had no choice but to share what she did not want to share: that she had been battling ovarian cancer, and now, for the first time in years, felt strong enough to commit to full-time work. “Finally,” she thought to herself, “that’s out of the way. Maybe now we can talk about ‘what really matters,’ namely the position’s responsibilities and the corporate culture.”

Her interviewer apparently thought differently, and simply proceeded to ask her if she was certain she had the energy to do the job, what medicines and treatments continued, and – pointedly – what was her prognosis. As Theresa complied, with each additional question, she was less and less certain that she wanted to work for this firm.

Not surprisingly, Theresa did not get an offer for the job.

LESSON TO LEARN: Any person who is struggling with cancer, or who has done so in the past, knows what it means to fight for your life. Those who are fighting cancer surely have a lot on their “plate.” Those who are battling the disease, or who have done so in the past, AND who are seeking work, have more on their “plate” than most people can imagine. This newsletter is intended to lighten that burden by providing information about how the law provides some protections for them, and for those who care for them.

Disability Law, In General: The Americans with Disabilities Act (“ADA” for short), is the federal law that protects those with disabilities from discrimination in employment based on their disability. The ADA defines “disability” as (a) an impairment that substantially limits a major life activity, or (b) a record or history of having a substantially limiting impairment, or (c) being perceived by others as having a disability. The ADA covers employment by private employers with 15 or more employees, as well as state and local government employers (Section 501 of The Rehabilitation Act provides similar protections for federal employees).

The U.S. Equal Employment Opportunities Commission (“EEOC” for short) is the federal agency that enforces the provisions of the ADA. With certain different limitations, definitions, and procedures, most states, and even many cities, have their own laws, ordinances and agencies that provide additional protections to employees with disabilities, or who are perceived to have an impairment.

Cancer and Disability Law: The ADA was amended in 2008 to protect job applicants who are battling cancer, or who have done so in the past, from discrimination on that basis. Unique among diseases, cancer is now presumed to be a disability, giving cancer victims more protection from discrimination than are those who suffer from many other diseases.

Unfortunately, despite increasing understanding of the burdens of having cancer, people with cancer still experience barriers to equal job opportunities due to interviewers’, supervisors’ and colleagues’ misperceptions about their ability to work during and after cancer treatment. Even when the prognosis for recovery is excellent, some employers presume that a person diagnosed with cancer will be unable to perform their work duties, will take frequent and long absences from work, will be unable to focus on their duties, and may not survive very long.

Perception of Disability: Although many people don’t know it, you do not need to be disabled in order to be protected by the Disability Laws, which also protect job applicants who are “perceived to be disabled.” So, if for any reason a job interviewer “perceives” you to be disabled, then the prohibition against disability discrimination protects you, too.

Like Theresa in the Case History above, you may not have cancer or any other disability, but nonetheless your interviewer believes you may not be able to work occasional overtime, or if he or she believes you may call in sick a lot, and does not hire you for this reason, the law is on your side, regardless of the fact that, in fact, you have no disability.

[This newsletter is dedicated to the memories of Emil, 66, a friend of 55 years, and Krysten, 40, a close friend of several years, both of whom over the past year have fought the good fight against cancer, but who did not, in the end, prevail.]

EIGHT MOST FREQUENTLY ASKED QUESTIONS, AND THEIR ANSWERS:
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“ To err is human.
To blame it on someone else shows management potential.”

– Unknown

ACTUAL CASE HISTORY: Gary, 44, was a staff writer for an online entertainment industry blogsite. Most of his writing in recent years was about trends in subscriptions to live streaming music. His special expertise was in data collection and analysis to spot trends, and he was widely known as an expert in that area.

Gary’s analysis of live-streaming subscriptions lead him to the firm conclusion that certain of the largest live streaming music companies – indeed, the largest ones in the music industry – were losing more and more subscription customers to their smaller, more focused, and nimble competitors. When he wrote a significant article about this trend, his editor refused to publish it, claiming that it was replete with illogical assumptions on Gary’s part. This had never happened to Gary before in his 20 or so years as an entertainment industry writer.

Separately, two colleagues approached Gary in confidence, and shared with him that the blogsite’s editor had admitted to them that she declined to post his article because she was afraid of backlash – in the form of less advertising – from the larger streaming services, who were the blogsite’s “bread and butter.” They even shared an email in which the editor claimed to have been pressured to do so by the blogsite’s owners.

Gary then submitted to Human Resources a formal complaint of breach of his contract provision that forbade editorial decisions being made on financial considerations, and also that this was a breach of ethics and company policy. A two-week “investigation” by the blog site’s outside lawyers concluded only that “We did not find that anything improper has taken place,” despite the emails, the witnesses, and the circumstances that clearly showed otherwise.

Only after Gary brought the situation to the attention of the company’s CEO and Board of Directors did real progress toward addressing the problem begin to take shape.

LESSON TO LEARN: The most important lesson my mother taught me is that, “Without accountability, you really can’t expect responsibility.” Let’s face it: if failure to pay your taxes was not illegal, and no one checked whether or not you did, would you really do so? (As a lawyer, I must advise you that you need not answer that.)

Let’s all simply accept the reality that the same thing happens at work: many managers will not do the “right thing” if no one will hold them accountable for their failures to do so. And that is why they often hire “investigators,” not to determine the truth but to protect themselves from it.

Over my 35 years as an advocate for employees, many times I’ve helped clients file claims or complaints with their employers’ HR department, compliance department, and legal department of wrongful behavior against them by means of (a) discrimination, (b) harassment, (c) hostility, (d) retaliation, (e) dishonesty, (f) fraud (especially regarding Performance Improvement Plans), (g) threats of violence, and other misconduct by their managers or colleagues. In past years, some of those investigations found that the complaints were fully justified; other times, it was concluded that there was no basis for the complaint. The reasons given for not finding a basis for the complaint were often shared, and included (i) a misunderstanding of what was said or done, (ii) the alleged “offense” was only a very minor transgression, and (ii) the alleged “offense” may have taken place, but it was done in error, that is, without wrongful intention.

Increasingly, however, employers’ investigators – whether Human Resources, in-house Legal Staff, Employee Relations, or external investigators, such as law firms – never, ever seem to find any wrongdoing. It’s as if we now live and work in a “world of angels.”

That is because “investigators” are almost always tasked not with determining the truth, but rather with three specific objectives, namely, to:

1. Gauge Risk: To gauge the amount of risk posed by the complaining employee and his or her complaint, to both senior management, personally, and the organization or company;

2. Diminish Risk: To frustrate the employee’s efforts to exercise his or her legal rights, determine the truth, protect themselves, and hold the “guilty” persons accountable for their wrongdoing, misconduct or negligence; and

3. Divert Accountability: To ensure that no one – and most of all members of senior management – are not held accountable for wrongdoing, what we call brought into the “zone of accountability.” Said a bit differently, making sure that “the buck” does not stop on anyone’s desk.

And, it is close to never these days that investigators are willing to share the reasons “nothing wrong was found,” because that, itself, would raise a risk. This is so even when they are presented with such strong evidence of wrongdoing as, for examples, (a) incriminating emails, (b) damaging documents, (c) credible witnesses, (d) damning circumstances, and even (e) admissions of wrongdoing.

Sound a bit paranoid? Well, consider that Wells Fargo Bank internal and external investigators “investigated” internal wrongdoing for five years and fired over 5,000 of their branch personnel for opening up non-existent accounts, but found not a single thing wrong, in error, or even questionable about the conduct of senior management who both (a) directed, coordinated and collected bonuses of tens of millions of dollars as a result, and (b) were not even criticized, until Congress had open hearings about it and exposed this gross dishonesty and rank hypocrisy.

The ultimate issue is this: “Who is investigating the investigators?” The “secret” to truly resolving this dilemma is to make “someone in authority” accountable for what has taken place, and that “someone in authority” is almost always your employer’s senior-most management. When they are brought into the “Zone of Accountability,” you have significantly more leverage, which can be put to significantly better effect.

WHAT YOU CAN DO: These are the several steps you should consider taking in order to get past, over and beyond such “blindness to wrongdoing” on the part of “investigators” of any complaint you file at work:
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“ It’s a great thing about being pregnant –
You don’t need excuses to pee or to eat.”

– Angelina Jolie

ACTUAL CASE HISTORY: I must admit – being a man – that I have no direct “personal” experience with pregnancy. However, I do have many female clients, in fact, a majority of my clients are female, and I think I’ve learned more than a thing or two from them on this subject. And, too, I am an employer, and have been told by more than one female employee that she is pregnant. So, I think I see things from “both sides” at least a bit.

I know from many of my clients’ case histories that notifying their employer of a newly confirmed pregnancy, and then “navigating” the process of the many details of “pre-leave,” “leave,” and “post-leave,” were harrowing. Many of them have asked, “Do you have a checklist of some kind that I can use?”

And many of them have shared a sense that, if they don’t do this carefully – very carefully – their jobs and careers could suffer.

LESSON TO LEARN: Pregnancy is a time of transition. There are bodily changes, emotional changes, changes in family dynamics, and others, too. It is not surprising that pregnancy brings about certain workplace changes, as well.

Preparing for the workplace changes cannot be accomplished entirely on one’s own. Your colleagues, managers, clients and assistants may all have to make adjustments to accommodate the changes going on in your life, and common sense dictates that you and they cannot make necessary adjustments until you’ve given them notice of your pregnancy.

So, when should you give notice of your pregnancy? How should you do so? What should you say? There are no hard-and-fast rules. That said, here are the guidelines we have put together from the experiences of our clients, from hints and ideas found on the internet, and from my own experience as an employer receiving notice of pregnancy from my own employees and partners.

They are set forth here, so that you can consider inserting them into your notice of pregnancy, and also as checklist of items to attend to. You have enough on your mind, already.

WHAT YOU CAN DO: We have assembled the suggestions we received from our clients and others about when, how and what to do when giving notice of your pregnancy. You can also use these suggestions as a kind of checklist for your Maternity Leave planning.

One important thing to bear in mind: “No one size fits all.” By that I mean that each of us has different views, sensibilities, circumstances and concerns. Perhaps in no context is that more relevant than it is in matters of pregnancy and maternity. So, pick and choose which, if any, of the following suggestions may apply to you, and which may not, and insert those that do make sense into your notice of pregnancy:
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“ Sometimes you can only find Heaven
by slowly backing away from Hell.”

– Carrie Fisher

ACTUAL CASE HISTORY: I can recall many case histories of clients, and their family members, who have dealt with the reality of addiction to substances, both legal and illegal. I am not an addiction therapist, that is for sure, but I do receive many questions all the time regarding how to best deal with legal issues related to addiction and the workplace. Here are a few issues that I remember having been consulted on:

–Can an employer refuse to hire a person because he or she is a recovering addict, free of use for years?
–Can an employee be terminated for using illicit drugs on his or her days off?
–Is addiction a legally recognized disability under the law?
–Is alcohol addiction treated the same way as drug addiction?
–Is addiction to prescription drugs treated the same way as addiction to illegal drugs?
–If an employee confides with a company Employee Assistance Program (“EAP”) that he or she is having problems with drugs, must the EAP staff maintain strict confidentiality?
–Is misconduct to be excused because it took place while the employee was under the influence of drugs?
–Can an employee be terminated for being a recovering addict?
–If you are experiencing an addiction, is it wise to tell your employer?

Because substance abuse and addiction have recently reached epidemic levels, we have undertaken to address these and related issues as, they arise in the workplace, one by one, step by step, day by day, to the eventual goal of providing our blog visitors with a sound platform for understanding addiction, the law, and the workplace.

This newsletter is one installment in a series on “Addiction, the Law and the Workplace.”

LESSON TO LEARN: We all have our demons, our challenges and our personal mountains to climb. Few of us are without some pains that sometimes scream out to us for some sort of relief. These matters, and the many ways in which they manifest themselves, are necessarily recognized and addressed in the workplace, and in “the law of the workplace,” as well.

Actually, the law is rather forgiving on this subject, consistent with the notion of redemption. Essentially, the law says “If you are helping yourself, we will help you do so, but if you are not helping yourself, you are on your own.” In my view, our Congressmen and Congresswomen have been quite wise in this respect.

[Incidentally, it should be pointed out that addiction to alcohol is treated somewhat differently by the law than is addiction to illegal substances, reflecting the fact that alcohol is a legally acquired addictive substance, in contrast to many other addictive substances. It should also be pointed out that there are some differences between the way the law treats addiction to legally prescribed medications and the way it treats so-called “illicit” ones.]

By our blog efforts we try to assist you, and those you care for, and those care for you, in this context.

WHAT YOU CAN DO: Is drug addiction a legally recognized – and legally protected – disability? If so, why, when and how? Here are ten (10) pointers that may be helpful to keep in mind, whether you or a loved one is dealing with an addiction, or may do so in the future:
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Question: My baby was born a month ago, and everything is going well. I am scheduled to return to work in 30 days.

In two weeks, there is an annual trade conference that I have attended in past years that I would like to attend again this year, both to represent my employer and to network for myself. It would be a two-day trip. My pediatrician thinks it would be good for the baby, because I will be going back to work, and this may be a good “trial run” for her. Am I permitted to do that?

Carleen
Brewster, New York

Answer: Dear Carleen: First, congratulations on your new “little one.” Everyone who knows me knows that I believe kids are the best part of life . . . “usually.” Your question really made me think, and also required that I do some legal research. This is what I have concluded:
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