WIRTW #329 (the “amicus” edition)

The ABA Journal has opened nominations for its annual list of the best legal blogs, known as the Blawg 100. I’ve been fortunate enough to be selected the past four years. The ABA Journal is soliciting opinions for whom to include this year. I’ve already submitted my list. Please take a few moments of your time and do the same. The nomination form is available here, and the deadline for nominations is August 8.

Here’s the rest of what I read this week (and last week):

Discrimination

• Real and Spectacular! A true Seinfeld-ian claim of sexual harassment — from Eric Meyer’s The Employer Handbook Blog
• An in-depth look at the EEOC’s new Enforcement Guidance on pregnancy — from Robin Shea’s Employment and Labor Insider
• Pregnant at work: How you’re protected — from Evil HR Lady, Suzanne Lucas
• Not a “team player” … or sex discrimination? — from EmployerLINC
• Is pregnancy a disability? The true false version — from Understanding the Americans with Disabilities Act
• Hiring Discrimination and Religion: Recent Studies — from Workplace Prof Blog
• Can My Employer Ban Me From Speaking Spanish To Co-Workers? — from Donna Ballman’s Screw You Guys, I’m Going Home

Social Media & Workplace Technology

• How NOT to Produce Facebook Evidence — from Molly DiBianca’s Delaware Employment Law Blog
• Top 10 Social Media Mistakes Made by Supervisors — from Next Blog
• Are You Googling Job Candidates? When You Do, Everyone Loses — from TLNT
• How I’m Trying to Manage My Online Brand — from You’re the Boss Blog

HR & Employee Relations

• What an Employment Lawyer Can Learn From Minecraft (or Not) — from Dan Schwartz’s Connecticut Employment Law Blog
• Work-Life Balance: PepsiCo CEO Says It's a Myth — from Employment Lawyer Blog
• No One Should Have to Choose Between Caregiving and Work — from Harvard Business Review
• Telecommuting Will Increase by 21% by 2016 — from Blogging4Jobs
• How Difficult Is It To Sue Your Employer? — from Evil Skippy at Work
• I was fired for taking a 15 Minute dump — from The Tim Sackett Project
• July BTW: Two New FCRA Class Actions & The Problem with Ban the Box — from employeescreenIQ Blog

Wage & Hour

• Employee lawsuit targeting Apple for unpaid wages gets class action status — from The Verge
• FLSA “Per Diem” Claims On The Rise — from Wage and Hour Laws Blog
• Paralegal’s suit claims law firm should have paid for overtime — from ABA Journal Daily News
• Violating the FLSA may send you to jail — from Mike Haberman’s Omega HR Solutions
• Costly Wage And Hour Mistakes — from Overtime Lawyer Blog
• Defense Appropriations “Wage Theft” Amendment May Bar Employers with FLSA Violations from Defense Contracts — from Wage & Hour Insights
• The FMLA and the “Personal Staff” Exemption — from The Employment Brief
• Obamacare Opinions Galore! — from Phi Miles’s Lawffice Space

Labor Relations

• Subway Franchise Workers Unionize — from Labor Relations Today
• NLRB Overturns Decert Election Based On Employer’s “Promises” Of 401(k) — from Labor Relations Update
• NLRB Seeks to Rewrite Legal Standard to More Easily Find Joint Employer Relationships — from Matt Austin Labor Law
• Macy’s Department Store Workers Allowed to Unionize — from All in a Day’s Work

Customer preference and race discrimination—when the customer isn’t right

The EEOC has sued a Chicago auto parts retailer for race discrimination after it fired an African-American store manager. The store was located in a heavily Hispanic Chicago neighborhood. THe company decided to eliminate or limit the number of non-Hispanic employees working at the store, believing that its Hispanic customers preferred to interact with Hispanic employees. When the manager refused to report to another store, the EEOC claims he was fired.

John Hendrickson, the EEOC’s regional attorney in Chicago, explains in a news release why the agency filed suit.

Fifty years after the adoption of the Civil Rights Act, a major employer transferring an employee simply because of his race and then firing him for not going along is unacceptable. When the employer is a major national brand and a leader in its industry, it’s even worse. Everyone must understand that supposed customer preference is no excuse for discrimination—it’s still illegal, and the EEOC will step in to challenge it.

Mr. Hendrickson is correct. As one federal court explains, “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” Avoid the trap of acting on a mistaken belief that customers will only deal with like-skinned employees. Simply, the customer can never choose the race of the person working for you. The customer might be right about a lot things, but discrimination is not one of them.

Orange is the new sexual harassment lawsuit

Orton-Bell v. State of Ind. (7th Cir. 7/21/14) [pdf] concerns allegations of sexual harassment levied by a substance-abuse counsel at an Indiana maximum security prison against her co-workers and superiors. The allegations break down into two categories:

• Other employees and correctional officers at PCF were having sex on Orton-Bell’s desk. When she complained, a supervisor told her he didn’t care as long as offenders were not involved. Another co-worker suggested she clean her desk every morning.

–and–

• Orton-Bell was called “Cinderella” and “Princess” by male employees.
• She received excessive pat-downs from female correctional officers. 
• On one occasion, Orton-Bell was required to remove her sweater in the shakedown area so that the sweater could be sent through a scanner. This caused Orton-Bell’s spaghetti-strap camisole tank top to be exposed to male employees and offenders.
• Male employees made comments about how the pat-downs were “almost like sex for them.”
• Orton-Bell was not permitted to wear jeans, but male employees were.
• Male employees engaged in a barrage of sexual banter with Orton-Bell in person and via email, including a comment from the male superintendent that “her ass looked so good that it would cause a riot.” 

The court concluded that the sex-on-desk allegations could not support a claim for sexual harassment because she could not prove the conduct, while egregious and offensive, was because of her sex.

The notion that night-shift staff had sex on her desk because she was a woman is pure speculation.… If there were evidence that the night-shift staff were using her office because she was a woman, and her supervisors were indifferent, that would be enough. If there was evidence that night-shift staff similarly used a man’s office, and her supervisors intervened in that circumstance but not in her circumstance, that would be enough. There is neither. Her supervisors’ insensitive and inattentive responses were callous mismanagement; but absent evidence that this inaction was based on her sex, it did not violate Title VII.… 

The conduct was certainly sexual intercourse on her desk, but that does not mean that night-shift staff had sexual intercourse on Orton-Bell’s desk because she was of the female sex. There is no evidence to indicate that, had her conveniently private and secure, but accessible, office belonged to a man, it would not have been used in the same manner. Accordingly, this incident, while egregious, does not support a hostile work environment claim. 

The remaining allegations, however, painted a different story.

The constant barrage of sexually charged comments, however, was clearly pervasive, offensive, and based on Orton-Bell’s sex.… 

The record does reveal an instance where, in an email conversation with a co-worker named Bruce Helming, she participated in vulgar banter. However, while that may lead a jury to conclude that she was not subjectively offended by the environment, one private conversation via email is not enough for us to conclude, as a matter of law, that she was not subjectively offended by the many other public, unwelcome sexually charged comments in the environment.

What does this case teach us?

1. Apparently, after-hours sex on workplace desks between co-workers is a real thing.
2. “Because of sex” has real teeth to it. No doubt, the desk-sex is gross and offensive. Yet, Orton-Bell could not offer any evidence that the use of her desk was for any reason other than the fact that it was located in a private office. Absent evidence that the use of her desk was sex-based, that allegation could not support a harassment claim.
3. An employee’s participation in some sex-based joking can, under the right circumstances, show that the work environment was not subjectively hostile. One email containing vulgar banter with a co-worker, however, likely is not enough. 

Let me leave you with this thought. If your workplace is sexually charged, it will catch up with you eventually. I cannot fathom the difficulties managing employee behavior in a maximum security prison. Nevertheless, Title VII does not stop at the door just because the workplace is inherently hostile. 

[Hat tip: Indiana Law Blog, via Andrew Cohen]

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. 

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.

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? 

DON’T IMPLEMENT RULES LIMITING BATHROOM TIME. 

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.

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.

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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.