WIRTW #353 (the “sphere of influence” edition)

Earlier this week, Moodvise published its list of the The 100 Most Influential People in HR and Recruiting on Twitter. I clocked in at a respectable #83. If you are new to Twitter, or just looking for a good list of folks to follow for your 140-character HR nuggets, you should check on Moodvise’s top 100.

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

Discrimination

• End tenure as of age 70… — via Walter Olson’s Overlawyered
• For the defense: It’s getting complicated — via Michigan Employment Law Connection
• McDonald's Corporation Sued In Employment Discrimination Case — via Overtime Lawyer Blog
• Court Holds Employer Who Fired Employee For Making Death Threats May Have Violated ADA — via The Employment Brief
• Two big sexual harassment cases: where the employers went wrong — via Robin Shea’s Employment & Labor Insider
• McDonald’s Wrongful Termination Lawsuit to Test NLRB Decision — via WSJ.com Law Blog

Social Media & Workplace Technology

• Hack to the Future: Eleven Cyber Risk Developments Watch in 2015 — via The D & O Diary
• Data Security and Cyberthreat Trends for 2015 — via The SHRM Blog
• OK to monitor email without consent? — via Business Management Daily

HR & Employee Relations

• If You Run Credit Checks on Your Job Candidates, Now Would Be A Good Time To Panic — via Evil HR Lady, Suzanne Lucas
• S’now Joke: You are Fired for “Bad Weather” — via Workplace Prof Blog
• Miles on Employee Handbooks — via Phil Miles’s Lawffice Space
• How should your office handle snow days? — via Ask a Manager
• Handling Employee Theft — via HR Examiner with John Sumser
• Do I Have To Respond To A Complaint About “Deflated Balls” — via Evil Skippy at Work
• Playing “I-Spy” in the NFL Deflate-Gate Is No Different than the Workplace — via Sherman Law Corporation
• A Working from Home Experiment Shows High Performers Like It Better — via Harvard Business Review

Wage & Hour

• BLIZZARD! Wage and Hour Reminders for Employers on Winter Storm — via Dan Schwartz’s Connecticut Employment Law Blog
• FACT OR FICTION: Snow + Office Closed = FMLA Day — via Eric Meyer’s Employer Handbook Blog
• Unpaid Internship Showdown at the Second Circuit — via The Wage and Hour Litigation Blog
• FLSA Collective Action Certified By NJ Federal Court: Another Dangerous “Electronic” Class Action — via Wage & Hour - Development & Highlights
• Employers Cannot Rely on Timekeeping Policies as a Defense to FLSA Claims — via HR Defense Blog
• Eleventh Circuit Explains That Employer Knowledge of Work Renders It Compensable — via Wage and Hour Law Update

Labor Relations

• Despite Government Efforts, Union Density Slips Further — via LaborPains.org
• Labor board readies flurry of decisions — via The Hill
• Ithaca Adjunct Faculty Begin Organizing Effort — via Labor Relations Today
• NLRB’s Budget Increases as Workload Decreases — via Matt Austin Labor Law
• What is a “Right to Work” law? — via Texas Employment Law Blog
• Union Membership Declines In 2014 — via Labor Relations Today
• NLRB: Employers may terminate employees for insubordinate social media messages — via Technology for HR

Help EmployeeScreenIQ with its 6th annual Employment Background Screening Survey

Every now again I get to do something nice for people I like. Today is one of those days. EmployeeScreenIQ is conducting its 6th annual Employment Background Screening Survey.

According to the company:

In its 2015 survey, EmployeeScreenIQ again sets out to capture the various influences on employers' hiring practices and how they respond when adverse information is revealed. What type of criminal history or resume discrepancy is egregious enough to disqualify a job candidate? How are employers handling job applicants when red flags arise? The threat of lawsuits over discriminatory hiring practices, complex and confusing "ban the box" laws, resume distortion and social media overreach are among the serious challenges that continue to vex the HR community when conducting employment background checks.

All participants will receive a copy of the published results, along with an entry for a $250 Amazon gift card (not that anyone is bribing you).

The survey is available here.

Given the proliferation of FCRA class action lawsuits, along with EEOC’s stepped-up enforcement against the use of criminal histories in hiring, this survey is well worth your time.

Jury verdict teaches that “open door” policies must still comply with EEO laws

There exists an inherent tension  between open-door and other self-reporting policies and the EEO laws.

Consider, for example, a recent $100,000+ jury verdict against a trucking company for disability discrimination. The company maintained a written “Open Door” policy, and an unwritten policy that prohibited any driver who self-reported alcohol abuse from ever returning to driving. The EEOC sued after an employee who availed himself of the Open Door policy to self-report an alcohol addiction was banned from any future driving for the company. Even though the company offered the driver a part-time dock position as an accommodation, the EEOC successfully argued that the employer failed to “make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment,” and that “to maintain a blanket policy that any driver who self-reports alcohol abuse could never return to driving—with no individualized assessment to determine if the driver could safely be returned to driving—violates the ADA.”

Employees need to be able to engage in protected activity without any retribution or other negative consequences. In this case, the employer learned of a disability and failed to engage in the interactive process for a reasonable accommodation. In others, employers might retaliate against an employee who uses an open-door policy to complaint about discrimination or harassment.

Open-door policies are laudable. They foster the communication that is necessary between employees and management necessary for a healthy (and hopefully union free) work environment. With that openness, however, comes responsibility—the responsibility to learn information without retaliating. Employees need to train management so that they know what to do with protected information once they learn it, and how to act without violating any of our EEO laws. Without this training, employers are setting up their open-door policies and programs for a litigation fail.

The full press release about this jury verdict is available here.

The FMLA has eligibility limits (unless you tell your employees otherwise)

The FMLA does not provide leave benefits to all employees of all employers. First and foremost, it only covers employers with 50 or more employees. And, only a subset of employees of a covered employer is eligible for FMLA leave.

An employee is eligible for FMLA leave from a covered employer if the employee—

1. was employed by the employer for at least 12 non-consecutive months;
2. worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
3. works at a location where the employer employs 50 or more employees within a 75-mile radius.

Employees who fails to meet any one of these criteria are not eligible for FMLA leave … unless the employer tells them otherwise.

In Tilley v. Kalamazoo County Road Commission (6th Cir. 1/26/15) [pdf], the employer maintained the following FMLA policy:

Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.

The employer, however, denied Tilley’s request for FMLA leave because he did not work at a location that employed 50 or more employees within a 75-mile radius. Based on the employer’s unambiguous policy, however, the court concluded that the employer waived any ability to rely upon the 50-employee threshold.

This is an unambiguous and unqualified statement that Road Commission employees, like Tilley, who have logged 1,250 hours in the year before seeking FMLA leave are covered by the FMLA and are eligible to apply for FMLA benefits…. 

The Road Commission could have qualified its statement concerning employee eligibility by adding that its full-time employees would only be covered by the FMLA if they worked at, or within 75 miles of, a site at which the Road Commission employed at least 50 employees. That is precisely what other employers have done…. 

And we are unwilling to conclude as a matter of law that Tilley was unreasonable in relying on the Manual’s statement that employees in his position were eligible to apply for FMLA benefits. Simply put, a reasonable person in Tilley’s position could fairly have believed that he was protected by the FMLA.

Bottom line? Courts will hold you to your word if you mis-represent FMLA eligibility to an otherwise ineligible employee. If you, as an employer, do not want to go beyond the FMLA’s baseline requirements, you need to check, and then double-check, your leave policies, to make sure you are not promising your way into more coverage than intended.

Should it matter if your employee thinks hand scanners are tools of Satan?

If you’re a long time reader of my blog, you might recall a story I shared a few years ago about a co-worker at one of my high-school jobs, who held some interesting opinions about Lee Iacocca, Satan, and the end of the world. At the time, I made a point about taking the path of least resistance with reasonable accommodations.

Apparently, Consol Energy is not a blog subscriber.

The Pittsburgh Post-Gazette brings us the story of Beverly Butcher Jr., an employee at its Robinson Run, West Virginia, mine, and an Evangelical Christian, who refused to use the company’s hand scanner to clock in an clock out, because he believed it would imprint him with the “mark of the beast.” Instead of working with Butcher, or providing him an alternative way to track his time, the company mandated his use of the hand scanner. He quit, the EEOC sued on his behalf, and, last week, a federal jury ruled in his favor, awarding him $150,000 in compensatory damages on his religious discrimination claim. Later this year the court will rule on back pay, front pay, punitive damages, and attorneys’ fees.

Whether or not an employee is entitled to a religious accommodation is not dependent upon whether or not you happen to agree with the employee’s religious beliefs. Instead, it hinges solely on whether the beliefs are sincerely held, and, if so, whether you can provide the accommodation without it imposing an undue hardship. While this employer could make a credible undue-hardship argument based on the need for accurate time tracking, and uniformity among employees, it it worth it. Denying the requested accommodation—not using the hand scanner and tracking time in and time out with a different tool—is not worth the headache and associated costs of a federal lawsuit (verdict included).

Requests for accommodations (whether for religious or disability purposes) are not the demarcation on a battleground. Instead, they are a call for a middle ground. Employers need to recognize this truth, and starting wars that simply are not worth fighting.

WIRTW #352 (the “rock hard” edition)

In my never-ending quest to be an employment lawyer and manager for my 8-year-old daughter’s burgeoning rock career, I bring you 4:50 of melt your face off rock and roll from last weekend’s School of Rock Joan Jett show. That’s Norah killing the lead guitar on “You Got A Problem,” and closing the show with “Bad Reputation.”

My personal favorite part—Norah’s demure, “Thank you very much / Have a good afternoon” after screaming about her bad reputation. Who said polite manners and rock ‘n’ roll don’t mix?

You can check out the repeat performance tomorrow, January 24, at 1 pm at the Music Box Supper Club.

Here’s what I read this week:

Discrimination

• New Retaliation Standard of Proof Shows Its Teeth — via Dan Schwartz’s Connecticut Employment Law Blog
• Keeping Up With the EEOC in 2015 — via Law.com - In-House Counsel
• Donuts & Pregnancy Rumors: A Cautionary Tale — via All in a Day’s Work
• A hospital may have broken the law by NOT hiring a convicted meth dealer — via Eric Meyer’s The Employer Handbook Blog
• Does sex discrimination protection extend to everyone? — via Mike Haberman’s Omega HR Solutions
• Telecommuting Discrimination — via hr bartender
• EEOC’s Arguments to Supreme Court Antithesis of Transparency and Open Government — via WinWinHR
• Is It Time To Make Fat People A Protected Class?​ — via Above the Law
• Five errors that make defending an employment lawsuit harder — via California Employment Law Report
• You’ve gotta be kidding. THIS is retaliation? — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Why Companies Are Doling Out Wearable Devices to Employees — via Next Blog
• Do We Need a “Right to Be Forgotten” in the U.S.? — via Technologist
• Glassdoor Matters Because ALL of Your Employees Are Now Used to Rating Things — via The HR Capitalist, Kris Dunn

HR & Employee Relations

• Should I Check With A Lawyer Before Firing Someone? — via Evil Skippy at Work
• Background Checks – Should We or Shouldn’t We? — via Genesis HR Solutions
• Background Checks: The Devil Is In The Detail — via fyiscreening.com
• 20 Things You Wish Your Coworkers Wouldn’t Do — via Evil HR Lady, Suzanne Lucas
• Debunking 4 Common PEO Myths — via GMS Blog

Wage & Hour

• Wage-Hour Litigation To Rise in 2015: So What Else Is New? — via Wage & Hour - Development & Highlights
• Judge Vacates Parts of USDOL Home-Care Regulation — via Wage and Hour Laws Blog
• Eleventh Circuit Explains That Employer Knowledge of Work Renders It Compensable — via Wage and Hour Law Update
• Should I let employees just leave a voicemail message when they’re going to be out sick? — via Ask a Manager
• Employer Requires Employee to Work During FMLA Leave. Ummmm, Is This a Problem? — via Jeff Nowak’s FMLA Insights

Labor Relations

• Technological change drives three new NLRB decisions — via Business Management Daily
• Newly Released Guidance from NLRB Regarding Social Media Policies — via Matt Austin Labor Law

Why performance reviews matter in employment litigation

According to Employment Law 360, a federal judge has indicated that he will likely deny the motion for summary judgment Deutsche Bank intends to file seeking the dismissal of a sex discrimination lawsuit brought by one of its former vice presidents.

The lawsuit alleges that bank “mommy-tracked” the plaintiff, a 14-year employee with a strong performance history, and ultimately fired her. Her lawyer argued to the court that her strong history of performance reviews demonstrates pretext in the bank’s decisions regarding her performance. In response to the bank’s counter-arguments about her performance (which included an argument that her positive reviews resulted from an “easy grader”), the judge responded, “It’s all sounding really fact-y to me.”

Folks, performance reviews matter. They not only matter in managing your employees during their employment, but they also matter in defending lawsuits about their employment. If you plan on terminating an employee on performance, you need to have the goods to back it up. What should you be doing before the termination? Checking the reviews to make sure the paper trail supports the poor-performer argument. If it doesn’t, you best have a solid explanation as to why. Otherwise, your termination will start to smell not only “fact-y”, but also possibly “pretext-y.” The last thing you want in a discrimination case is for your decision to have the scent of pretext.