Friday, December 19, 2014

WIRTW #349 (the “Merry Christmas and Happy New Year, y’all” edition)


With the end of the year drawing nigh, today’s post will be my last of 2014 (barring any hot-off-the-presses breaking news). I wish all of my readers a joyous holiday season (whatever your December celebration of choice), and a happy New Year. I’ll see everyone back in 2015.

Here’s what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, December 18, 2014

The 12 Days of Employment Law Christmas (2014)


For the past two Noels, I published “The 12 Days of Employment Law Christmas.” As this has become a year-end tradition at the blog, I’m sharing it again (with updated links). If you’re feeling brave, post a video of yourself singing along.

Have a great end to your 2014, and happy holidays, regardless of your holiday of choice.


(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets,
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Merry Christmas!

Wednesday, December 17, 2014

Feds impose LGBT affirmative action on federal contractors


If you are a federal contractor of subcontractor, in four months you will have new affirmative action obligations relating to sexual orientation and gender identity.

According to a Final Rule issued last week by the Office of Federal Contract Compliance Programs, beginning  April 5, 2015, federal contractors and subcontractors must include federal contractors and subcontractors must include sexual orientation and gender identity in their affirmative action plans.

According to the Rule, which implements Executive Order 13762, federal contractors and subcontractors must:

  • Take affirmative action to ensure that applicants are employed, and employees are treated, without regard to their sexual orientation and gender identity.
  • Include sexual orientation and gender identity as prohibited bases of discrimination in the Equal Opportunity Clause in all federal contracts, subcontracts, and purchase orders.
  • Update all solicitations or advertisements for employment to state that the contractor considers all applicants for employment without regard to any of the protected bases, which now must include sexual orientation and gender identity.
  • Post updated notices in the workplace for applicants and employees, which state that sexual orientation and gender identity are protected traits in employment.

Notably, and different than affirmative action for other protected traits, the Rule does not require contractors to set placement goals on the bases of sexual orientation or gender identity, nor does it require contractors to collect and analyze any data on these bases (although the OFCCP will consider statistical and non-statistical data in determining whether contractors have met their nondiscrimination obligations).

While Congress continues to drag it feet  on ENDA, the Obama Administration continues to do what it can to extend equal employment opportunity for all.

Tuesday, December 16, 2014

Adverse actions come in all shapes and sizes


Consider these facts, taken from Kudla v. Olympic Steel (Ohio Ct. App. 11/20/14). Employee, age 65, is fired from his job as part of a corporate reorganization. Employer has a change of heart, however, and rescinds the termination after Employee lawyers up and alleges age discrimination. He claimed, however, that his employment following his rehire was substantively different, including a forced move out of his prior office into a cubicle, the exclusion from meetings, and the placement on surveillance.

Based on these facts, the court of appeals had little problem deciding that the trial court should have allowed Kudla to present his claim to a jury:

He contends that he was essentially demoted and cites in support of his contention, for example, that many of his responsibilities, except clerical ones, were reassigned to his younger coworkers, and that he was moved out of his office into a cubicle.

Olympic Steel, on the other hand, denies Kudla's demotion claim and cites that his pay was not reduced, his job title did not change, and he still performed important work for the company. The company also contends that putting Kudla in a cubicle was a temporary situation necessitated by the reorganization of the human resources department; as part of the reorganization, Kudla no longer needed to discuss personal, confidential information with employees and managers and, thus, he did not need an office….

[W]e find that a genuine issue of material fact exists as to whether Kudla did suffer an adverse employment action.

It is not impossible to terminate, or otherwise take an adverse action against, an employee on the heels of protected activity. Moreover, something as innocuous as moving an employee out of his office could be deemed sufficiently “adverse” to support a retaliation claim.

Bad employees cannot bulletproof themselves merely by complaining about discrimination. However, you must have a rock-solid legitimate non-retaliatory and non-pretextual reason for your action to survive the lawsuit that is likely to follow.

Monday, December 15, 2014

The NLRB was a busy beaver last week


Late last week, the NLRB made huge news. In Purple Communications, the NLRB ruled that employees have a right to use their employers’ email systems during non-working time to communicate about union issues. For more on this case, I suggest checking out the write-ups by my friends Dan Schwartz and Seth Borden, both of whom did an excellent job summarizing the decision and its import.

In response to Purple Communications, employers should be reviewing, and, if necessary, revising, their email and electronic-communications policies to ensure that they do not prohibit employees from engaging in conversations about union issues during non-working time.

To cap its week, the Board next issued its rules for ambush elections in representation proceedings.

While the email ruling is the sexier of the two issues, the election rules will likely have the more significant impact on your business. In fact, I agree with Eric Meyer that Purple Communications is not that big of deal. Yes, it is troubling that the NLRB is ignoring the property rights employers have in their own email systems. But, in reality, I wonder if employees are using their company’s email systems for this purpose. There are so many other modes of communications available to employees. They can text each other. They can message on Facebook. The fact is that unions are increasingly more technologically sophisticated in their organizing tactics, and I wonder how many are relying on corporate email systems for communication. Moreover, if employees are using your email systems for organizing, then you have the right and the ability to read those emails. If you can have access to unions’ organizing secret sauce, is this access all that bad for employers.

In response to the election rules, employers need to adopt what I call the “TEAM” response to union organizing:

  • Train supervisors
  • Educate employees
  • Accessibility
  • Modernize policies

You can read more about this philosophy of union avoidance here. The point is that once a union files its petition seeking a representation election, you will have scant time to respond. You will not have time to launch a full-blown counter-campaign. If your supervisors do not know how to spot potential organizing before it becomes an issues, and if you don’t have a game plan in place long before its needed, you will have a difficult, if not impossible, time engaging in a meaningful response to the union. If you can’t effectively communicate your message to your employees, you will have a difficult time convincing those employees to vote against the union.

Friday, December 12, 2014

WIRTW #348 (the “blackheart” edition)


Twice a year, my kids’ school invites any students in grades K – 5 who take private music lessons to perform in a recital for the entire Lower School. On Thursday, 16 students displayed their musical talents. We heard Christmas carols, standards, and classical pieces. And then Norah took the stage with Joan Jett’s Crimson and Clover:

If you're in Cleveland, you can see Norah perform this (and other Joan Jett songs) with her full band on Sunday, January 18 and Saturday, January 24, at the Music Box Supper Club.


Have you voted yet for this year’s ABA Blawg 100? You have until Dec. 19 to cast your vote here.


Here’s what I read this week:

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, December 11, 2014

Even Santa needs an employee handbook


The Christmas season is upon us, which means that the elves are hard at work deep inside the confines of the North Pole’s buildings preparing gifts to load onto Santa’s sleight for his Yuletide trip around the globe. Pop culture, such as Rudolph the Red-Nosed Reindeer and Elf, portrays Santa’s workshop as a happy, jolly place, where the elves gleefully craft toys all hours of the day and night, with not even a whisper of discontent.

Someone (or, more accurately, some elf), has squealed.

The North Pole Employee Handbook: A Guide to Policies, Rules, Regulations and Daily Operations for the Worker at North Pole Industries was allegedly found in “the vast confines of a Newark warehouse used to store elf clothing for Christmas displays.” It appears that all is not candy and carols at the North Pole.

For example:

  • Employees are called “cogs.”
  • Humans are not discriminated against in employment, as long as they are nimble, quick, and speak in high-pitched voices.
  • Cogs receive unpaid holidays for most of January, all of February – September, and half of October. With no other industry to speak of in the North Pole, however, other income-earning opportunities must be scarce.
  • Human employees must wear fake elf ears “as a gesture of solidarity with” their “fellow employees.”
  • Cogs must sign a non-competition agreement as a condition of employment. (I guess that job at Mattel is going to have to wait.)
  • Discipline can include weeks of work without pay.
  • Cogs receive the generous allotment of one five minute break and one 11.5 minute lunch break for every 11 hours worked.

Other topics covered include the dental plan (administered by Herbie), how to participate in reindeer games, and what the 12 days of Christmas mean to you. Needless to say, Santa does not appear to be one to be trifled with. Then again, if he knows when all of the world’s kids have been naughty or nice, it stands to reason that he keeps a pretty tight grip on his employees. And, if you think Santa is a pain, the handbook makes it clear that the HR Director, Mrs. Claus, goes without physical attention from Santa during peak production times and can get a tad prickly as a result.

If you’re looking for a good holiday gift for that special HR person in your life, I strongly recommend The North Pole Employee Handbook.

Also, don’t forget after January 1 to take a look at your own employee handbook, to determine if any policies need to be updated or added.

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