Friday, February 27, 2015

WIRTW #357 (the “proud papa” edition)

My kids go to an amazing school. Part of what makes it amazing is that beginning in third grade the second parent-teacher conference is student led. Last night, my wife and I experienced our first Norah-led conference.

The conference blew me away. I knew that Norah would be presenting her PowerPoint on Neptune, the culmination of weeks of research and hard work. I was not prepared, however, for the conference to be 100% student led. My wife and I watched and listened for nearly 45 minutes as, working off a prepared agenda, Norah ran the meeting and walked us through all she’s done for the past four months. She presented a dramatic monologue. She shared a story she had written in her creative writing journal. She demonstrated how she’s learned 3x2 multiplication. She displayed her self-assessed progress report (she’s much tougher on herself than her teacher would have been). The conference capped with Norah’s Neptune PowerPoint, which, with her permission, I’m sharing with you.

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations


Thursday, February 26, 2015

Reading the #SCOTUS tea leaves: headscarves, religious accommodations, and Abercrombie

Yesterday, the Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc. (transcript here [pdf]), which will hopefully determine the circumstances under which an employer must, as a religious accommodation, grant an exception to its “Look Policy” for a hijab-wearing job applicant. More broadly, employers hold out hope for some more generalized guidance on what they should do when a corporate policy conflicts with an employee’s sincerely held religious belief.

What an interesting argument. The Justices seemed very skeptical of requiring employees to raise the issue of a reasonable accommodation in a job interview, and instead suggested that the burden should fall on an employer to bring up the issue. For example, Justice Kagan asked:

You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation…. But the alternative to that rule is a rule where Abercrombie just gets to say, “We’re going to stereotype people and prevent them from getting jobs. We’ll never have the awkward conversation because we’re just going to cut these people out.”

The criticism of the employer, however, was not limited to the Court’s left wing. Justice Alito also seems skeptical that an employer can simply ignore an obvious potential need for an accommodation simply by denying employment.

All right.  Let’s say …­­ four people show up for a job interview at Abercrombie…. So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit. Now, do you think … that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement….

I want to know the answer to the question whether the employee has to say, I’m wearing this for a religious reason, or whether you’re willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.

Justice Alito then offered a very practical solution:

Well, couldn’t the employer say, we have a policy no beards, or whatever, do you have any problem with that?

Reading the tea leaves, I predict another employee-side victory from this conservative-majority court. If we are assigning burdens, it seems to me that the Court thinks it makes sense to place the burden on the party with more information (the employer) to explain the job requirements to determine if a potentially obvious religious belief conflicts. Otherwise, you are requiring the employee to guess at whether an accommodation is needed at all.

Stay tuned. This will be a very interesting opinion to read when it is released later this year.

Wednesday, February 25, 2015

DOL proposes expanded FMLA coverage for same-sex couples

Same-sex spousal rights in this country are a mess. There is hope that the Supreme Court will clear it all up later this year when it hears the issue. In the meantime, the Department of Labor has proposed a change to the FMLA’s definition of “spouse.” From the DOL:

We announced a rule change under the FMLA to make sure that eligible workers in legal, same-sex marriages, regardless of where they live, will have the same rights as those in opposite-sex marriages to care for a spouse. We’ve extended that promise so that no matter who you love, you will receive the same rights and protections as everyone else.

For the purposes of the FMLA, marriage will now be determined based on where the couple got married, not on where an employee lives. This is called a “place of celebration” rule.  That means that access to federal FMLA leave for an individual in a same-sex marriage is protected regardless of the marriage laws of the state in which that worker resides.

Thus, as proposed, the meaning of “spouse” under the FMLA would depend on the law of state in which the marriage was celebrated, not the law of the state where the employee lives or works. So, if your business is in Ohio and your employee lives and works in Ohio (which does not currently permit same-sex marriages), but travels to New York for a lawful and valid same-sex wedding ceremony, you would have to grant that employee the same FMLA benefits as you would to any other “spouse.”

This rule takes effect March 27, which means you have only 30 days to prepare your FMLA policies and practices for this important change. What should you be doing to prepare? Jeff Nowak offers three really good ideas:

  1. Train your leave administrators and supervisors on the new rule.  If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.

  2. Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.

  3. Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater rights than those provided for under the FMLA.

Of course, as Robin Shea correctly points out, if the Supreme Court rules later this year that states must recognize valid same-sex marriages entered in other states (as it should), then the necessity of this DOL regulatory change is short lived.

Courtesy of the DOL, here are all of the resources you need on this important issue:

Tuesday, February 24, 2015

Turning a mistake into an educational opportunity

Yesterday, local morning news anchor Kristi Capel got herself into a bit of a mess when, during her newscast and while speaking to her African-American co-anchor, used “jigaboo” to refer to Lady Gaga’s music.

We can debate the sincerity of her explanation (“I deeply regret my insensitive comment. I didn’t know the meaning and would never intentionally use hurtful language. I sincerely apologize”), or the intent of her words. To me, she did not appear to intend hatred or bigotry, even if I don’t necessarily believe that she didn’t know the meaning of jigaboo. We can also debate whether she deserves to lose her job because of this incident. To me, if this is her first instance of racial insensitivity in the workplace, then there is no reason she must be fired (although Fox 8 certainly would be within its rights if it did so).

Instead, I want to use this story to illustrate a broader and much more useful point. In responding to workplace harassment, Title VII does not require that an employer deploy the most severe punishment. Instead, Title VII merely requires that an employer institute corrective action that is reasonably likely to prevent the harassment from re-occurring. Every workplace faux pas is not an excuse to punish. Yet, each presents an opportunity for an employer to teach, and for employees to learn.

In commenting on the incident, Fox 8’s news director said, “Kristi apologized on the air shortly after making the remark. She did not know what the word meant but that is no excuse for using it. We have spoken with her and are confident nothing like this will happen again.” Good response.

Monday, February 23, 2015

4th Circuit eviscerates EEOC in background screening case

Nearly a year ago, the 6th Circuit sent a strong message to the EEOC in dismissing a case regarding its “expert” witness retained to challenge an employer’s use of credit checks. Last Friday, the 4th Circuit affirmed the dismissal of a similar case in which the EEOC used the same expert. In EEOC v. Freeman [pdf], the 4th Circuit did not mince its words:

The EEOC wields significant power, some of which stems from the agency’s broad discretion to investigate, conciliate, and enforce, and some of which derives from public actions that exert influence outside the courtroom. The Commission’s actions can be also expected to have broader consequences than those of an ordinary litigant given the “vast disparity of resources between the government and private litigants.”

In deciding when to act, the Commission must balance sometimes-competing responsibilities. On the one hand, the agency must serve the employee’s interest by preventing an employer from “engaging in any unlawful employment practice” under Title VII. On the other hand, “the EEOC owes duties to employers as well: a duty reasonably to investigate charges, a duty to conciliate in good faith, and a duty to cease enforcement attempts after learning that an action lacks merit.” That the EEOC failed in the exercise of this second duty in the case now before us would be restating the obvious.

The EEOC must be constantly vigilant that it does not abuse the power conferred upon it by Congress, as its “significant resources, authority, and discretion” will affect all “those outside parties they investigate or sue.” Government “has a more unfettered hand over those it either serves or investigates, and it is thus incumbent upon public officials, high and petty, to maintain some appreciation for the extent of the burden that their actions may impose.” The Commission’s conduct in this case suggests that its exercise of vigilance has been lacking. It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so.


Friday, February 20, 2015

WIRTW #356 (the “rock hall” edition)

induction_logo-eventspages______Xlj5tP3You may have heard that Cleveland has the Rock and Roll Hall of Fame. You may have also heard that this year is Cleveland’s turn in the rotation to host the induction ceremony.

The Rock Hall is turning this year’s inductions into a week-long party, which kicks off with Celebration Day on April 11.

Here comes the cool part. Since Joan Jett is one of this year’s inductees, the Rock Hall has invited my daughter’s School of Rock band for an encore performance of last month’s Joan Jett showApril 11, at 5 pm, on the big stage at the Rock Hall. Norah’s very sincere comment when I told her: “Some people wait their whole lives to play at the Rock Hall — I’m only 8.”

School of Rock Cleveland   The Music of Joan Jett   YouTube

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations


School of Rock at The Rock   Roll Hall of Fame  Joan Jett   School of Rock Strongsville

Thursday, February 19, 2015

Gawker intern lawsuit shows the need for social-media savvy in the legal profession

Have you recently tried to communicate with someone under the age of 25? Have you tried to call them? How about email? What about text message, Facebook, or Twitter? I bet that your communicative outreaches are much more likely to gain a response if you choose any of the latter over the former.

Thus, it shouldn’t be that surprising that a federal court is permitting a group of former interns (now plaintiffs) to use social media to reach out to potential class members concerning a wage-and-hour lawsuit against online blog network Gawker. According to Gawker, however, in this letter filed with the court [pdf], the plaintiffs’ planned social media outreach goes too far.

The court previously green lit the plaintiffs’ use of social media to reach potential class members. Their proposed plan? In addition to tweets directing potential class members to a website about the lawsuit, the use of the hashtag “#gawkerinternlawsuit, and the creation of a Facebook pages and LinkedIn group to disseminate information to potential class members. Other proposals, to which the employer objects, include:

  • Repeat messages over numerous social media sites, including Twitter, LinkedIn, Reddit, Facebook.
  • The use of inflammatory hashtags such as #fairpay and #livingwage.
  • Plaintiffs’ counsel adding potential claimants as Facebook friends.
  • Using Reddit to tie the lawsuit to unrelated political causes.

I don’t need to tell you that social media has become ubiquitous. I also don’t need to tell you that lawyers are notoriously slow to adapt. As the Gawker case illustrates, social media is playing, and will continue to play, an important role in litigation. If I were hiring an attorney to handle my employment litigation, one question I would be asking is whether that lawyer understands social media, uses social media, and knows how it could be used to help the case.

[Hat tip: Employment Law 360]

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