Tuesday, July 22, 2014

President signs Executive Order banning LGBT discrimination by the federal contractors and government

Yesterday, President Obama amended two prior Executive Orders, adding new protections against sexual orientation and gender identity discrimination. Executive Order 11246, which extends anti-discrimination obligations to federal contractors, now also includes prohibitions against sexual orientation and gender identity discrimination. Executive Order 11478, which already banned sexual orientation discrimination by the federal government, now also includes a prohibition against gender identity discrimination. The provisions affecting federal employees takes effect immediately. Those impacting federal contractors will take effect within 90 days, after the Secretary of Labor implements regulations.

Currently, only 18 states prohibit employment discrimination based on sexual orientation and gender identity. Ohio is not one of them. These amendments will extend these protections to 28 million federal employees and employees of federal contractors. Thus, if you are an Ohio company with federal contracts, this prohibition will apply to you.

It is time for employers to stop invidious discrimination against LGBT employees. According to the White House, 91% of Fortune 500 already prohibit discrimination based on sexual orientation, and 61% already prohibit discrimination based on gender identity. Yet, according to President Obama, “In too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense.… I firmly believe that it’s time to address this injustice for every American.” 

I agree. It’s incomprehensible and unjustifiable for an employer to discrimination on the basis of sexual orientation and gender identity. It’s antithetical to what this country stands for — government of the people, by the people, for the people, and justice for all (no matter with whom they happen to go to bed at night). Eventually, Congress will act, pass ENDA, and make LGBT discrimination a thing of the past. Until then, do right by your employees. Enact policies prohibiting this type of discrimination in your workplace. Send a message that you are an employer of inclusion, and not exclusion. 

Monday, July 21, 2014

When your plaintiff is a prostitute

Let’s say an employee sues your company for sexual harassment. And let’s say the allegations are bad—that the supervisor told the plaintiff he could save her job if she “f***ed” him, after which the supervisor raped her. Like I said, BAD. As an employer, you don’t have a lot of options, other than to hope you have insurance and to know that someone likely is going to write a big check.

Then, you receive a gift—knowledge that the employee might hold a side job as a prostitute. That information doesn’t excuse or defend the supervisor’s actions (which are beyond deplorable), but they do provide an opportunity to lessen the sting of the plaintiff’s damage claim.

Armed with this knowledge, you serve discovery seeking the nature and extent of the plaintiff’s activity as a prostitute/escort. Does the court allow you to take this discovery?

Here’s how one Ohio federal court recently ruled, in Hulec v. JH Bennett & Co.
Plaintiff Hulec requests lost wages and damages for emotional distress. Evidence about the wages Plaintiff may have earned as an escort would be relevant to calculate the damages Plaintiff is entitled to should she win this case. … 
The Court allows limited discovery, through a reopened deposition or interrogatories, into these matters: (1) the general nature of the escort services Plaintiff has offered or performed in the past five years; (2) the frequency with which she has performed those services; (3) her income from those services; and (4) any medical or psychological treatment she received related either to her sexual assault or to other sexual encounters.
In cases like Hulec, victory is differently measured. In this case, a settlement that will not throw the employer into bankruptcy is a win. It is important to do everything you can to lessen the potential pool of damages available to the plaintiff. In this case, that mitigation came in the form of the plaintiff’s other “work.” Don’t give up hope, even in the fact of difficult cases. You pay us a lot of money to defend you. Let us earn that money with our creativity. As long as you are willing to keep an open mind to what it means to “win” a case, we might surprise you.

Thursday, July 17, 2014

Should you limit bathroom breaks for employees?

Teamsters local 743 has filed a complaint with the National Labor Relations Board claiming that an Illinois faucet manufacture unfairly disciplined 19 workers for “excessive use” of washrooms. What’s excessive, according to the company? Sixty minutes over the last 10 days, or a mere six minutes per day. 

The company reports that it had to limit bathroom use because employees were spending too much potty time outside their scheduled breaks. According to CNN, the company claims employees lost 120 hours of lost production per month as a result. The Daily Mail reports that the company supposes that employees are spending the time texting instead of taking care of bathroom business. According to the employees’ union rep:
The company has spreadsheets on every union employee on how long they were in the bathroom. There have been meetings with workers and human resources where the workers had to explain what they were doing in the bathroom.
Take note that this issue was brought to a head by a labor union. Do you know how to keep your workplace union-free? 


Employees don’t organize over issues like wage or benefits. They organize because they don’t feel like they have a voice with management. Maintain channels of communication. Have an open door through which employees can pass to discuss concerns and air grievances. And, for Pete’s sake, don’t implement Orwellian work rules. What are you supposed to do if an employee is spending too much time in the bathroom texting? Discipline that employee for slacking off. Trust me, your other employees will get the message without you having to limit all of their toilet time to six minutes per day. 

For more on workplace bathroom breaks, including how to implement reasonable bathroom rules in your workplace, read When you gotta go, you gotta go: The right to workplace bathroom breaks.

Wednesday, July 16, 2014

Employment Law Blog Carnival: The Child of the 90s Edition #ELBC

I’ve been thinking a lot lately about the 1990s. Maybe it’s the fact that they were my formative years in college and law school. Maybe it’s the three-night series I just watched on National Geographic Channel. Maybe it’s the rebirth (and re-cancellation) of Arsenio Hall. Maybe it’s how my daughter is learning Nirvana, Pearl Jam, and the Chili Peppers for her next gig. Or, Maybe it’s just because I’ve been listening to a bit too much Lithium on my satellite radio trying to recapture my youth. Whatever the case, I’m dedicating this, my annual turn at the wheel of the Employment Law Blog Carnival, to the 90s.

So put on your flannel shirts (or blue dresses), bust out your Bill-Clinton sax, and enjoy this grungy Child of the 90s edition of the Employment Law Blog Carnival, as I present the best of the Employment Law Blawgosphere as seen through the lens of ten of the best songs to come out of The Last Great Decade.

Four Leaf Clover — Old 97’s (1997, as covered in 2014)

The Old 97’s recorded this song twice, a countrified version on their debut album, Hitchhike to Rhome, and this rock version for their 1997 breakthrough album, Too Far to Care, which Rhett Miller turned into a duet with Exene Cervenka, singer from the punk band X. Do you feel lucky? Read these 4 Steps to Combat Workplace Discrimination, from Ari Rosenstein’s Small Biz HR Blog, and you might.

Daughter — Pearl Jam (1993)

Eddie Vedder can be a bit hard to understand when he sings. Did you know that this song is about a girl with a learning disability, abused by her family and friends because they did not understand what was wrong with her? Perhaps they needed a lesson in accommodation. Next term, the Supreme Court is going to provide us one on pregnancy discrimination, as Phil Miles reports on his Lawffice Space blog, in SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case.

About a Girl — Nirvana (1994)

Nirvana originally recorded About a Girl in 1988, but it did not become a hit until Nirvana’s MTV Unplugged performance years later. The Beatles inspired Kurt Cobain to write the song. The Supreme Court’s Hobby Lobby decision was about a girl who could not buy certain birth control under her employer’s medical insurance, as Heather Bussing, at HR Examiner, explains in What the Hobby Lobby Case Means.

Weezer — Undone, The Sweater Song (1994)

According to Rivers Cuomo, this song is about that feeling you get when the train stops and the little guy comes knocking at your door. That explanation is as cryptic as the song. Perhaps a better explanation is found in Why employee use of social media “off the clock” may still impact your workplace, from Eric Meyer’s The Employer Handbook Blog. Maybe it’s the same feeling you get if you don’t education yourself about your employee’s off-the-clock social media use.

Hunger Strike — Temple of the Dog (1992)

Temple of the Dog is an amalgam between Soundgarden and Pearl Jam. Did you know that Eddie Vedder, who had flown to Seattle from San Diego to audition for Mookie Blaylock (which would later become Pearl Jam), and was only supposed to sign back-up on Hunger Strike? Chris Cornell, however, so much liked how Vedder sang the song, it ended up as a duet. And, the rest is grunge history. Do you smoke pot (legally, of course)? Then, there’s no hunger strike for you, given your propensity to the munchies. Can you fire someone who smokes pot (legally, of course)? Read Florida Legalizes Medical “Marijuana” But You Can Still Be Fired For It, from Donna Ballman’s Screw You Guy’s, I’m Going Home, to find out.

Bullet with Butterfly Wings — Smashing Pumpkins (1995)

Vampires and rats in cages? Believe it, or not. Here’s Employment law BELIEVE IT OR NOT! from Robin Shea’s Employment & Labor Insider.

Interstate Love Song — Stone Temple Pilots (1994)

According to Scott Weiland, this song is about honesty, lack of honesty, and his then-newfound love for heroin. Pretty bleak stuff, if you ask me. Do you know what else is bleak? Not correctly paying your employees, as explained in Holiday Pay for Employees with Alternative Work Schedules from Wage & Hour Insights.

Sabotage — Beastie Boys (1994)

For my money, this is the greatest music video of all time. This, along with Weezer’s Happy Days-inspired Buddy Holly, made a name for Spike Jonze, who went on to direct the Oscar-nominated films Being John Malkovich and Her. For the past six years, federal agencies have been trying to sabotage employers, according to Is the EEOC the new NLRB?, from John Holmquist’s Michigan Employment Law Connection.

Green Day — Basket Case (1994)

“Do you have the time / To listen to me whine?” Trying to figure out the hows and whens of inflexible leave of absence policies will turn you into a basked case. Just ask Dan Schwartz, who, on his Connecticut Employment Law Blog, posted Wait, “Inflexible” Leave Policies Are Actually Okay? Sometimes.

Give It Away — Red Hot Chili Peppers (1991)

This song is all about the philosophy of selflessness and altruism. Employers seldom adopt this philosophy when settling lawsuits. When settling lawsuits with employees age 40 or over, don’t forget about the OWBPA, as explained in Settlement and the Older Workers Benefit Protection Act, from Robert Fitzpatrick on Employment Law.

Eric Meyer, the author of The Employer Handbook blog and currator of this fine Carnival, will host next month’s Employment Law Blog Carnival, on August 20. If you want to participate, email him a link to your employment-law-related blog post by August 15.

Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with edition #329.

Tuesday, July 15, 2014

EEOC issues Enforcement Guidance, Q&A, and Fact Sheet on Pregnancy Discrimination

If had any doubt that pregnancy discrimination is a hot-button issue at the EEOC, look no further than yesterday’s publication of three documents by the Agency on the issue:
Among the topics addressed by the EEOC are:
  1. The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy, a woman’s potential to become pregnant, fertility/infertility, and the intent to become pregnant.
  2. Lactation as a covered pregnancy-related medical condition, which means that denying lactation time or space to new moms violates Title VII.
  3. The circumstances under which employers may have to provide light duty for pregnant workers, and the requirement that an employer provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions.
  4. Issues related to leave for pregnancy and for medical conditions related to pregnancy, and the requirement that pregnant employees who are able to perform the essential functions of their jobs must be permitted to do so.
  5. The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave.
  6. The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms.
  7. When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary. These pregnancy-related impairments, which the ADA covers as disabilities, include gestational diabetes, pregnancy-related sciatica, and preeclampsia. Potential reasonable accommodations include redistributing marginal or nonessential functions, modifying workplace policies or work schedules, telework where feasible, leave in excess of a medical leave policy, purchasing or modifying equipment, or temporarily reassigning an employee to a light duty position.
All three documents are required reading for any employers with female employees of child-bearing age. Moreover, while the EEOC’s Enforcement Guidance is not a statement of law, but, instead, a federal agency’s non-binding interpretation of what the law means, employers should take these interpretations seriously. Courts do look to the EEOC for help in interpreting Title VII, and employer who ignore this Guidance or act contrary to it are taking a huge risk in doing so.

Monday, July 14, 2014

Should you block social media at work?

One of my summer television addictions is NY Med, which follows surgeons around some of the New York metro area’s busiest hospitals. One this summer’s episodes focused on a man who had been hit by a subway train. An ER nurse Instagrammed a photo of the empty trauma room, along with the caption “#Man vs 6 train”. Later that day, the hospital fired her. According to ABC News, she was fired for being “insensitive,” not for posting any protected patient information or for violating any hospital policy.

I thought of this story as, over the weekend, I read an article on The Next Web entitled, Productivity vs. Distraction: Should you block social media at work? The answer to this question is a resounding “no.” Here’s why, in my opinion.

Like it or not, we live in a social world. People are living their lives on Facebook, Twitter, and Instagram. Take Facebook. It has 1.28 billion users, 59% of whom visit the site every day. 68% of all time spent on Facebook is done via its mobile app. Twitter is even higher, at 86%. These stats show that it you are trying to ban employee social media access at work, you are fighting a battle you cannot win. If an employee wants to check Facebook at work, or post a Tweet, or show off that fancy filtered sunset on Instagram, they will simply take their iPhone out of their pocket and post away.

So what is a company to do? Embrace the fact that employees will access their social media accounts from work. So, how do you balance on-the-job productivity against the social media’s distractions? TNW offers four great tips:
  1. Draft a policy. I was troubled when I read that the nurse on NY Med had not violated any policy by posting on Instagram a photo of the inside of a trauma room. Given the vast number of your employees who are on social media, it is irresponsible not to have a social media policy. Just make sure it will pass muster with the draconian agenda being put forth by the NLRB.
  2. Invest in the idea that employees represent your company. Jason Seiden, the co-founder and CEO of Ajax Social Media, calls it profersonal: the inherent intertwining of our personal and professional personas online. You can read more on my thoughts on this important issue here. Suffice it to say, however, that employees need to realize that anything they say online can impact their professional persona, and that it is our job as employers to help educate our employees about living in a “profersonal” world.
  3. Training, training, training. Teaching employees about the meaning of “profersonalism” is just one part of the training puzzle. The best way to limit employee social media problems is to invest some time and money into training your employees about these issues. Having a policy is step one in this process, but training your employees on what that policy means is steps two through ten (at least).
  4. Allow for brain breaks. We ask an awful lot of our employees. It’s rare to find a nine-to-five job these days. If your employees are working 45, 50, or 50-plus hours per week, what’s the harm if they spend a few minutes during the day checking Facebook. Workplace social media is not a technology problem, it’s a performance problem. Thus, technological solutions will not work. You need to treat social media abuse as a performance problem. If an employee is spending so much time on Facebook that he or she cannot complete the job, then provide counseling or discipline. If an employee posts something that harms the business, counsel, discipline, or fire. Treating the problem by shutting off the technology will not cure the problem; it will just take if off your network. 
Facebook might not be Facebook in five years. But, rest assured, something else will take its place. Social media is not going anywhere. Employers need to embrace this reality, or face a workforce they do not understand and cannot hope to control.

Friday, July 11, 2014

WIRTW #328 (the “fore!” edition)

It was a lovely day for golf yesterday at the annual KJK golf outing. If only my swing agreed.


On Wednesday, I’m hosting the July edition of the Employment Law Blog Carnival. Please send my way any post you’d like featured.

Here’s the rest of what I read this week:


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

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