Employee “loses track of time” due to disability

by Walter Olson on May 29, 2012

Trying to let the mentally disabled employee go from its store in Woodland, Calif., though, proved costly to retailer Target Corp., which has agreed to pay $275,000 to extricate itself from her wrongful termination claim under the Americans with Disabilities Act. [Sacramento Bee] The worker had found employment at Target with the assistance of a nonprofit organization that works with mentally disabled workers, and which had supplied her with a “job coach.” It remains to be seen whether employers like Target will continue to accept such placements with enthusiasm as the perceived legal risks of doing so keep rising.

P.S. Thanks to commenters for drawing out this point: yes, Target’s ultra-stringent employee discipline policy for failure to take timely lunch breaks does look like a lawyer-driven adaptation to its high legal exposure (especially in California) to class action suits claiming that employers permitted work during designated breaks. See, for example, this post and this one. Note that in each case the company feels constrained to fire the workers because they are putting in too much work, not too little.

{ 7 comments }

1 Jane 05.29.12 at 10:38 am

16 year employee fired “because she was late taking a meal break three times in 18 months” – once by three minutes. Are ALL of their other employees robots because if this was all she was guilty of, she sounds like a really great employee.

2 DEM 05.29.12 at 10:54 am

The SacBee article refers to her “disability” several times but nevers says what it is, other than to say it makes her lose track of time. is absent-mindedness now a protected “disability” under the ADA?

One also wonders why Target would have a borderline no-tolerance policy towards employees who are late taking breaks. I am going to guess that failing to ensure employees take all of their breaks would also open Taregt up to liability. It’s rather easy to imagine a nation-wide class action alleging that Target failed to enforce break times and is therefore liable to pay overtime to a huge class of plaintiffs who claim that their mamangers did not enforce break times at their stores.

3 Walter Olson 05.29.12 at 11:31 am

On the extreme personnel practices that employers adopt (especially in California) to avoid meal break liability under wage and hour law, see
this post and this one. Note that in each case (including this latest) the company feels constrained to fire the workers because they are putting in too much work, not too little.

4 DEM 05.29.12 at 12:52 pm

Thanks Walter — it is as I expected. Employment law continues to morph into a game of “heads I win tails you lose” in favor of employees.

5 DensityDuck 05.29.12 at 1:42 pm

Amusing protest idea: One day, all the workers at a Wal-Mart say “hello” to a customer one time during their lunch break. Book it as “time worked”, and then report it to the government as “required to work during mandated lunch break”. (If Wal-Mart fires you instead, file a “wrongful termination” lawsuit.)

6 Mark Biggar 05.29.12 at 2:07 pm

Mandatory break times (enforced to the minute) for employees that deal with customers is insane. BTW, the is time to talk from your station to the break room on or off time? What is the employee suppose to do, drop a customer cold at break time (bad customer relations), refuse to serve a customer if it’s to close (how to determine that) to break time because they might go over (also bad customer relations and wastes real employee work time). There really need to be looser rules of customer facing employees.

7 DensityDuck 05.29.12 at 3:48 pm

Biggar: It’s a “workers’ rights” thing, an attempt to ensure that employers don’t force their workers to go flat-out for eight hours in a row. A result of the bureaucratic-primacy mindset that anything which isn’t banned should be compulsory.

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