Tuesday, October 13, 2015

Just because harassment is offensive doesn’t make it illegal

Clifford Harris is a practicing member of the Voodoo religion. His co-workers at Electro-Motive Diesel often expressed their opinion about his religion, calling him “crazy” and describing it as “evil”. (For what it’s worth, they might not have been that off base—Harris once got called into a meeting with his supervisor after he was accused of blowing Voodoo dust on a co-worker.)

The issues came to head one day when Harris discovered that his co-workers had vandalized his locker:

At the end of his shift on February 20, 2010, Harris discovered additional graffiti on his locker that contained the phrases “Resputia,” “Damien,” “Ms. Melodie N Cliff,” “Call me now!!!! Mon,” “Dracula’s locker,” “Transylvanian Whore,” “Voodoo Bitch,” and Harris’s first name, “Clifford.” In addition, the graffiti included a caricature of Harris with red eyes and “cartoonish” moles—corresponding to where Harris actually has moles—a drawing of a snake, a drawing of a horned animal head, and a pentagram. Harris was also distressed to find a fluid-filled condom attached to the lock in such a way that unlocking the locker would require handling the fluid-filled condom.

In Harris v. Electro-Motive Diesel (N.D. Ill. 2/12/15), the court had little issue concluding that the graffiti was based on Harris’s religion:

The graffiti on Harris's locker contained references to the occult, voodoo, and the devil … which overtly mocked Harris’s religion. The caricature mocking Harris’s physical appearance, references to Harris’s name, and the graffiti’s location on Harris’s locker show that the harassment was unmistakably directed at Harris personally. Any reasonable person would take umbrage if the victim of similar religiously-themed vandalism.

For similar reasons, a reasonable jury could also find that the graffiti was motivated by Harris’s religion. As discussed above, a jury could infer from the references to the occult, voodoo, and other religious symbolism that religious hostility motivated the vandalism….

That finding, however, did not carry the day for Mr. Harris. Instead, the employer’s quick response to Harris’s complaints won the case:

The graffiti and the condom were removed. EMD responded by warning employees in writing that such harassing or threatening behavior would be punished, possibly with termination, and implemented a policy of regular supervisor locker room checks. By Harris’s own admission, there were no more incidents of vandalism after EMD implemented these policies…. EMD’s prompt response was sufficient because not only was it “reasonably calculated” to end the harassment, it was successful in doing so. There is no basis in this record to conclude that EMD turned a blind eye toward the incident or failed to take sufficient steps to remedy the problem and to keep it from recurring.

This case is a great example of the difference between harassment and Harassment. There is no doubt that the graffiti was offensive and targeted at Harris’s Voodoo. Minds could differ on whether the harassment was severe and pervasive (this court thought it wasn’t; another court could just as easily see it the other way). What should not be in doubt, however, is the effectiveness of this employer’s response and corrective action. Within four days, the employer warned Harris’s co-workers to knock it off … and the harassment stopped. Case closed. Let this be a lesson on the importance of prompt and effective action to complaints of harassment.

Monday, October 12, 2015

Be careful what you email (yes, this is a lesson I need to keep repeating)

Two USERRA posts within four days? What is this world coming to?

In Arroyo v. Volvo Group North America (7th Cir. 10/6/15), the appellate court was faced with the issue of whether the district court correctly dismissed an Army Reservist’s USERRA lawsuit. Volvo claimed that it fired LuzMaria Arroyo for violations of its attendance policy. The court, however, thought that the following emails exchanged between her supervisors suggested otherwise:

  • “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty…. I certainly give her credit for serving our country but of course I am also responsible for our business needs.”
  • “First, we do not have to grant time off for [Arroyo’s] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.”
  • “Unfortunately, there isn’t a lot we can do…. Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.” (after her deployment to Baghdad.)
  • “[Arroyo] is really becoming a pain with all this.”

An individual claiming discrimination under USERRA need only prove that military service was a “motivating factor” in the adverse action—which may rely on circumstantial evidence (including suspicious timing, statements, or behavior) that creates a “convincing mosaic” from which a reasonable jury could infer discriminatory motive.

In this case, the court concluded that emails completed this convincing mosaic, or at least enough of it for the case to go to a jury:

Taking all the evidence as a whole, a reasonable jury could infer that Volvo was motivated, at least in part, by anti-military animus toward Arroyo. There is evidence that from the beginning of her employment, her supervisors disliked the burden her frequent military leave placed on the company. They repeatedly discussed disciplining her and denied her rights, such as travel time, to which she was entitled. Some of the emails come close to a direct admission of management’s frustration….

Animus or frustration alone, however, does not support a claim of discrimination. It must have been linked, as a motivating factor, to an adverse employment action…. Again, we think a jury could reasonably conclude that there was such a link here. The emails expressing management’s frustration often transitioned directly to a discussion about disciplining Arroyo under the local attendance policy for her tardiness and absences.

Unlike diamonds, email messages aren’t forever, but they are pretty darn close. Employers need to train managers and supervisors to be vigilant in their care about what they reduce to writing in emails. Emails, especially those pertaining to the employment (or impending unemployment) of those in a protected class, must be vetted and re-vetted before being sent. Ask yourself this question: “Would I want this email read to a judge or a jury?” Unless the answer is an unequivocal “Yes”, do not send it.

Friday, October 9, 2015

WIRTW #385 (the “there’s no such thing as a free lunch…” edition)

Retailer Urban Outfitters is trying to new strategy to staff its fulfillment centers for the holiday season. It’s asking its salaried employees to work weekends. And, since they are already paid a salary, the work comes with the added bonus of no extra pay, but with a free lunch, and transportation (if needed).

Here’s the offending email (via Gawker):

From: URBNcommunity

Sent: Tuesday, October 06, 2015 12:01 PM

Subject: A Call For URBN Volunteers!

A Call for URBN Volunteers!

URBN is seeking weekend volunteers to help out at our fulfillment center in Gap, PA. October will be the busiest month yet for the center, and we need additional helping hands to ensure the timely shipment of orders. As a volunteer, you will work side by side with your GFC colleagues to help pick, pack and ship orders for our wholesale and direct customers.

In addition to servicing the needs of our customers, it’s a great way to experience our fulfillment operations first hand. Get your co-workers together for a team building activity!

The Details:

Who: Home Office URBN salaried employees

Where: URBN’s Fulfilment Center - 766 Brackbill Road, Gap, Pennsylvania 17527

What You’ll Be Doing: Pick, pack and prepare packages for shipment(please wear sneakers and comfortable clothing)

When: October 17, 18, 24, 25, and 31 Lunch will be provided

Two shifts each day: 9:00 AM – 3:00PM or 12:00 PM – 6:00 PM

(you can volunteer for one or multiple days)

Transportation: If needed, URBN will provide transportation to and from GFC (details provided after sign up)

How: Sign up using this link and we will be in touch with more details. Please do not show up without signing up.

Look, I’m all for team building (Urban Outfitter’s explanation for this idea), but, unless (and maybe even if) the CEO is showing up to pack boxes, this is a horrible idea. It also might violate the FLSA. I could see an argument that by asking salaried, exempt employees to perform a job that is so outside their normal responsibilities that they are being hired to perform a separate non-exempt job, for which they must be paid a minimum wage.Typically, however, an exemption is measured by an employee’s “primary duty”, and the performance of non-exempt, non-primary duties will not convert an exempt employee to a non-exempt employee. Regardless of this policy’s FLSA-legality, let’s all agree that this should be a non-starter from a PR and an HR perspective.

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


Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, October 8, 2015

A lesson on USERRA and military-status discrimination

The Uniformed Services Employment and Reemployment Rights Act guarantees servicemembers the right to be free from discrimination in hiring, re-hiring or reinstatement, retention, promotion, or any benefit of employment on the basis of that membership, application for membership, performance of service, application for service, or obligation in the armed forces.

David Eichaker worked as a police officer for the Village of Vicksburg while also serving in the military. Eichaker claimed that the Village discriminated against him because of his military affiliation, including, but not limited to, passing him over for a promotion to police chief in favor of a co-worker who did not serve in the military. Eichaker claimed that various Village officials made the follow statements in support of their decision not to promote him:

  • He was “focusing on his military career.”
  • “It would be hard to have a Police Chief if he was called away for [military] duty, or … deployed.”
Based on those statements, it was not difficult for the court of appeals to conclude that the district court had mistakenly granted summary judgment to the employer:
All of this testimony—which the district court appeared to overlook in granting summary judgment—was relevant to Eichaker’s claim. An employer’s concern that an employee is taking too much time off for military service is direct evidence of anti-military animus. So too is a supervisor’s statement that he does not want an employee volunteering for extra military duty when needed at work. This is true even when the comments are made at a time or by a person removed from the adverse employment decision. But there is no such remoteness here: Crawford explained his decision to demote Eichaker by referencing Eichaker’s military leaves of absence. That is direct evidence of antimilitary animus. Thus, Eichaker presented evidence that would allow a reasonable jury to find that his military service was a motivating factor in Crawford’s decision to deny him a promotion.
Employers, those that serve our country do so at great sacrifice, to their lives, families, and careers. Federal judges, many of whom served in the military, do not look kindly when employers trample that sacrifice through acts of discrimination. USERRA grants servicemembers anti-discrimination rights. The law treats those rights seriously as all other anti-discrimination rights—you should too.

Wednesday, October 7, 2015

Intermittent leave for exempt employees: the survey results

Last week, I asked a simple question: should employer require salaried, exempt employees to take intermittent FMLA leave as unpaid leave, and deduct hours spent on leave from their pay.

Here are the results:

Does your company take deductions from the salary of exempt employees for intermittent leave?

  • Yes: 41%
  • No: 59%

Does an employer take deductions from the salary of exempt employees for intermittent leave?

  • Yes: 35%
  • No: 65%

The percentage of companies that require such deductions was higher than I anticipated, and the percentage of individuals who believe that employers should take such deduction was way higher than I expected.

What do these numbers tell us? Last week, I heard Pat Perry, the President of Cleveland's ERC, speak. He said that we are managing 21st century employees with 20th century laws. I could not agree more.

Our employment laws, at least as to the when and the where we work, must be modernized. The 40-hour work week for exempt employees is a dinosaur. Yet, we still manage our people based on this nine-to-five, punch-the-clock, anachronism. If you want to attract and retain top talent, flexibility is key. A good place to start is with your FMLA and time-off management. If your employees work hard for you and get their jobs done, why should you care if they take an hour here or there for a doctor's appointment, or their child's school play? On leave management, employers are 100 years behind the times, and it's time to modernize thse policies to 2015.

Tuesday, October 6, 2015

Beware blanket exclusion policies under the ADA

Nicholas Siewertsen, deaf since birth, sued The Worthington Steel Company, claiming that it discriminated against him when it banned him from performing any job requiring him to operate forklifts or cranes.

From the time of his hiring in 2001 until the ban in 2011, Siewertsen operated forklifts, overhead cranes, and other motorized equipment without incident. He communicated with his co-workers using a variety of techniques and tools, including written messages on notepads, computer programs and text messages, hand gestures, and limited speech. In 2011, however, the plan human resources manager learned, apparently for the first time, that the company had a corporate-wide policy against deaf employees driving forklifts. Without considering Siewertsen’s decade of on-the-job performance, the company disqualified him from his current position, and transferred him, without a demotion in pay, to one of four menial jobs in the plant that did not require the use of forklifts or cranes. Siewertsen sued, claiming that the company violated the ADA by applying the no-forklifts-for-deaf-employees policy, and transferring him to another position. (Even though the transfer did not result in a reduction in pay, Siewertsen claimed the new position lacked any opportunities for promotion or advancement within the company).

The district court denied the employer’s motion for summary judgment, concluding that a jury should decide whether Worthington Steel satisfied its obligation to engage in an “individualized inquiry” as to whether Siewertsen could perform his job despite his disability:

The ADA mandates an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position. A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question. At bottom, the individualized inquiry requires the employer to consider whether the employee, despite his disability, is capable of performing the essential functions of the job. (internal quotations and citations omitted.)

So, what is an employer to do when faced with an employee whose disability could prevent them from performing a job?

  1. Do not apply a blanket exclusion policies. The ADA mandates an individualized inquiry, and one who excludes a disabled employee pursuant to such a policy has shirked this obligation under the ADA.
  2. Inquire as to an employee’s past experiences and successes working, despite the limitations imposed by the disability.
  3. Consider reasonable accommodations that will enable the employee to perform the essential functions of the job.

If you do nothing other than apply a blanket policy, you will have a hard time showing a court that you engaged in the required individualized assessment. The ADA is intended to be a law of inclusion that breaks down barriers that prevents disabled employees from working. The more effort you took to attempt to break down those barriers and permit an disabled employee to work (even if it ends up not working out), the better position you will be in if a disabled employee sues you.

Monday, October 5, 2015

A stinker of an ADA lawsuit: employee claims illegal firing over excessive gas

A New Jersey pork roll manufacturer is accused of unlawfully firing an employee because of his excessive flatulence in the office. The Huffington Post has the details:

Richard Clem started working at Case Pork Roll in 2004 as a comptroller and believes he did a good job…. At the time of his hire, Clem weighed about 420 pounds, but underwent gastric bypass surgery in October 2010, to get rid of his own porky belly…. He’s also suffered some embarrassing side effects, including “extreme gas and uncontrollable diarrhea.” In 2013, Clem’s symptoms worsened, which caused “significant disruption in the workplace,” according to the suit.

Louann Clem, who began her job at Case Pork Roll in 2008, said company president Thomas Dolan repeatedly griped about her husband’s gassy problem. The suit alleges Dolan made Richard Clem work at home and said things like, “We cannot run an office and have visitors with the odor in the office,” and “Tell Rich we are having complaints from people who have problems with the odors.” Richard Clem was fired from Case Pork Roll on February 28, 2014,  Louann Clem quit the same day “because of the harassment and discrimination her husband faced as a result of his disability and the resulting symptoms.”

The lawsuit, brought by the wife, not by the employee, claims that she was discriminated against because of her association with an employee with a disability. The claimed disability? Obesity. (You can download a PDF of the lawsuit here).

I’m not sure what the company could have done differently to accommodate this employee and his issue. An employee has to be able to work without offending co-workers and customers. It appears that the company offered (or required, depending on your perspective) tele-work as an accommodation. The extreme flatulence is one thing, but when you factor in “uncontrollable diarrhea,” what else was this employer supposed to do?

Announcing the launch of the Ohio OSHA Law blog

It’s with tremendous pride that I announce the launch of the Ohio OSHA Law blog. It is the second labor and employment blog published by Meyers, Roman, Friedberg & Lewis.

I like to think of myself as a blogging evangelist, and I am beyond pleased that my colleagues have picked up my blogging challenge.

For an agency as potentially devastating as OSHA can be for employers, OSHA often flies under the radar. Yet, all it takes is the complaint of one disgruntled employee, or one unpreventable injury, to bring an OSHA investigator your door. And, once they arrive, you can sure they won’t leave without telling you have to open your checkbook. The results of an investigation can be financially devastating. Click over to OSHA website for a snapshot of how high a citation can reach.

You need to educate yourself about OSHA, and bring your business into compliance before OSHA shows up at your door. So, do your business (and me) a favor and head over to OhioOSHAlaw.com for all of your workplace safety updates.

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