WIRTW #195 (the “pay equity” edition)

On Tuesday, I was the special guest on the Lunch as the Compensation Café roundtable. The topic: Pay Equity—Not Just for Women! Thanks to my hosts—Ann Bares (from Compensation Force) , Stephanie Thomas (from The Proactive Employer Blog), and Jim Brennan—for an engaging conversation about the importance of compensation self-audits. For those who missed it, the reply is available at focus.com.

Also, today is the last day to vote for the LexisNexis Top 25 Labor & Employment Blogs of 2011. Thanks to everyone who’s voted for any of these deserving blogs.

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

Discrimination

• Is This the Right Way to Help the Unemployed? – from You’re the Boss Blog
• Full Employment, for Lawyers – from National Review Online
• Business Case for Proactive EEO Compliance – from Stephanie Thomas’s The Proactive Employer Blog
• Suit By EEOC Not Covered Under EPLI Policy – from Michael Fox’s Jottings By An Employer’s Lawyer
• Hot Dog! EEOC accuses eatery of same-sex sexual harassment – from Eric Meyer’s The Employer Handbook Blog
• Accommodating Religion: NYC Adopts Definitions of Undue Hardship and Reasonable Accommodation for Employees – from The L•E•Jer
• How to Protect Your Business Against Discrimination Lawsuits – from CPEhr

Social Media & Workplace Technology

• Social-Media Policies: Ethical Issues for Court Employees – from Molly DiBianca’s Delaware Employment Law Blog
• Facebook’s Timeline Will Impact Your Career – from Harvard Business Review
• Facebook Keeps A History Of Everyone Who Has Ever Poked You, Along With A Lot Of Other Data – from Kashmir Hill’s The Not-So Private Parts
• Text Message, Email, and Social Media Authentication – from Phil Miles’s Lawffice Space
• Firings, Discipline Over Facebook Posts Leads To Surge In Legal Disputes – from Business Insider

HR & Employee Relations

• Employment at Will: The Most Misunderstood Principle in the Workplace – from TLNT
• 5 Investigation Interview Mistakes to Steer Clear Of – from i-Sight Investigation Software Blog
• Choosing the Investigator – from Russell Cawyer’s Texas Employment Law Update
• HR Related Musings: Layoffs and Competition – from Mike Haberman’s Omega HR Solutions
• Bad Reward Decisions & Layoffs – from Ann Bares’s Compensation Force
• How Paying Departing Employees to “Tend the Garden” Can Benefit an Employer's Business – from Unfair Competition & Trade Secrets Counsel
• No Smokers Allowed – from Rob Radcliff’s Smooth Transitions
• Employment Documents in Plain English – A Primer – from Tim Eavenson’s Current Employment
• The Top Office Pet Peeves Of Workers Around the World – from Workplace Diva

Wage & Hour

• Employers, don’t be too quick to take that IRS “independent contractor” deal – from Robin Shea’s Employment and Labor Insider
• Are Employers Rolling the Dice Under the IRS’s Employee/Independent Contractor Reclassification Program? – from Jason Shinn’s Michigan Employment Law Advisor
• Smart Phones and The DOL: Employers Better Wise Up – from Wage & Hour - Development & Highlights
• Phone conversation with boss counted as working off the clock – from HR Cafe
• Continuous Confusion: Defining the Workday in the Modern Economy – from The Wage and Hour Litigation Blog
• Some Realities of Unpaid Overtime Claims – from Portland Oregon Employment Lawyer
• Failing to Return Employee’s Phone Calls May Be FMLA Retaliation – from FMLA Insights
• Curbing FMLA Abuse: Policies Restricting an Employee’s Travel While on Paid Sick Leave – from Pennsylvania Labor and Employment Blog
• “Out of Control” Employee Screaming Profanities Loses out on COBRA Due to Gross Misconduct – from SmartHR

Labor Relations

• What? NLRB overrules employee vote to boot union – from HR Daily Report
• AFL-CIO v. American Bar Association on LMRDA Disclosure Rules – from Workplace Prof Blog

KJK scores huge victory in wage and hour class action lawsuit

Class certification is the seminal moment in wage and hour cases. The decision to certify a class will determine whether the case has the potential to be bet-the-company litigation, or merely litigation with a few discontented employees. Wal-Mart v. Dukes significantly altered the rules by appropriately shifting the focus in class actions to the existence (or lack thereof) of individual issues that distinguish and separate class members from each other. Even before the Supreme Court decided Dukes, however, courts were tuned-in to this issue. For example, consider Mickle v. Wellman Products, LLC, in which we scored a tremendous victory for our client by winning the reversal of the trial court’s class certification.

The plaintiffs in Mickle, four ex-employees, sought the certification of a class of employees for alleged unpaid wages. The issue: unpaid “gap time”—the time between when the employees clocked in/out and started/ended their work days.

To avoid any editorialization of my own case, I’m turning over the remainder of this post to the words of the Oklahoma Court of Appeals.

The Court described the challenged pay practice:

The hand scanned times are subject to “ETime Punch Rounding.” Under the rounding system, if an employee scans in prior to the start time of his or her shift, the employee’s start time is rounded to the beginning of the shift. If an employee scans after the start of his or her shift time, the rounding defaults the employee’s start time to the next quarter hour increment. At the end of the shift, if an employee scans out early, the employee’s end time is rounded to the prior quarter hour increment. If an employee scans out late, after the end of his or her shift, the employee’s end time is rounded the prior quarter hour increment.

The hand scanned times are not the sole method used by Wellman to determine payroll. Before an employee’s time is submitted to payroll, each employee’s default rounded ETime is reviewed and manually edited by a Lead to reflect the time an employee actually worked. The evidence submitted by Wellman demonstrated the Leads sometimes manually rounded punch time to the benefit of an employee. The ETime records are then submitted to payroll for editing and for use in creating weekly pay.

The plaintiffs alleged:

ETime always rounded in Wellman’s favor and the times recorded by the hand scanner and the rounding system provided common proof of all hourly employees’ uncompensated work during the time period between the hand scan and the shift buzzer.

The company argued:

[C]ertain proposed class members may not have performed work-related activities during the gap period. At the hearing, several employees … testified that during the gap periods, they may socialize with other employees, eat a meal in the break room, wash their hands, shower and change clothes, smoke cigarettes, or read the newspaper. These employees also testified that ten minutes before the buzzer sounded at the end of their shift, they would clean-up their work site in preparation for the next shift. The time record evidence shows routine individual adjustment of pay time both ways for a variety of reasons, pursuant to the gap period policy.

The Court held:

[T]he common issue of an allegedly flawed time-keeping method is “swamped by individual factual inquiries into the activities of each employee during the gap periods.” … Because Wellman did not exclusively rely on the hand scanned times and the ETime punch rounding method to determine payroll and each claim for unpaid overtime work must be examined to determine if such work was authorized, we hold individualized proof concerning each hourly employee’s activities during the gap period is indispensable to each employee’s claim….

[W]e conclude issues as to whether each employee was engaged in work or non-work activities during the gap period are too individualized to warrant class treatment for all hourly employees….

The full opinion of the Oklahoma Court of Appeals, which the Oklahoma Supreme Court has declined to review, is available for download from the National Chamber Litigation Center.

When you care enough to send the very best ... to the unemployed

Hallmark—the purveyor of greeting cards for occasions such as miscarriages and cancer—has tapped into a new market with a line of cards for the unemployed. Some of the gems include:

• When things are looking kinda gloomy, do as I do. Stare into the heavens, breathe deeply, and say … Give Me a %#!@$!! Break!!!
• It’s hard to know what to say at a sensitive time like this. … How about, “I’m buying!”
• One day, you’ll look back on all this with the wisdom that distance bestows, and you’ll say … “Wow, that sucked.”
• Don’t think of it as losing your job. … Think of it as a time-out between stupid bosses.

According to the Department of Labor, our national unemployment rate is holding steady at 9.1%, representing 14 million people out of work. I’m guessing business is booming for Hallmark.

[Hat tip: Eve Tahmincioglu]

Let employees have their say when disciplining

When you counsel or discipline employees, do you give them a chance to have their say? For example, does your written discipline or performance review forms provide space for employees to explain their side of the story? If your answer is akin to, “It won’t change the outcome, so why bother?” consider Cozzuli v. Sandridge Food Corp. (Ohio Ct. App. 9/26/11) [pdf].

Sandridge Food fired Cozzuli after several years of poor reviews and performance problems. In affirming the trial court’s grant of summary judgment to the employer, the appellate court relied on the fact that “Cozzuli signed his performance review and opted not to write any comments in the ‘Employee Comments’ portion of the paperwork.” The court did not believe it was credible for an employee to use performance critiques, about which he had not taken issue during his employment, as evidence of discrimination afterwards.

In depositions, I always make sure the employee confirm that the employer provided the opportunity to make written comments about discipline, and that they chose not to do so. It is powerful evidence that—as Cozzuli illustrates—can help obtaining a dismissal.

Dear Congress: Can you fix the economy before you focus on Facebook?

Two related stories caught my eye last week:

• Are Fewer Employers Checking Facebook Before Hiring? – from Molly DiBianca’s Delaware Employment Law Blog
• Senators Worried Job Seekers “Unfairly Harmed” By Social Media Background Checks – from Kashmir Hill at Forbes

Here’s the gist of these stories. According to a recent study by SHRM, fewer employers are using social media websites to vet job candidates now than three years ago:

Has your organization used social networking websites to screen job candidates at any point in the hiring process, or does it plan to do so?	2011	2008
No, and we do not plan to	67%	67%
Yes	18%	13%
Yes, previously, but do not plan to again	4%	2%
No, but plan to	11%	18%

Despite this relatively low use, certain Senators on Capitol Hill have turned their attention to employers’ Facebooking of job candidates. According to Kashmir Hill’s article, Senators Al Franken and Dick Blumenthal have launched a Congressional inquiry on the issue of whether “a job applicant could be unfairly harmed” by the use of social media in the hiring process.

Let me get this straight. Our country is nearly bankrupt, and Congress is spending its time worrying about whether John Doe job applicant can’t get a job because he recklessly posts public pictures of his debaucherous weekend binge, or comments trashing his last boss. People who are searching for a job need to take ownership of their online image, and realize that information that is publicly available is fair game for a potential employer to reach conclusions about your fitness as a future employee. Is it any wonder the Congressional approval rating has reached at an all-time low of 12%?

Another statistic from this SHRM study caught my eye. Only 15% of businesses have any kind of formal policy addressing the use of social media sites to screen job applicants. This number is disturbing. Even if your business falls in the majority that have not used, and do not plan to use, social media to vet applicants, don’t you think you should tell those doing the hiring not to Facebook people? Left to their own devices, curiosity will get the better of people, and we all know what curiosity did to the proverbial cat. You are doing your business a grave disservice if you do not have a social media policy addressing these issues, and if you don’t train your employees on what this policy means.

You can read more about the use social media in the hiring process in Think Before You Click: Strategies for Managing Social Media in the Workplace.

WIRTW #194 (the “sermon on the blog” edition)

On Monday, I dodged the question of whether Jesus was the world’s first socialist. The answer is no:

Apparently, he also was not a fan of the minimum wage (skip ahead to 1:32 for the key piece):

It’s debatable if he can hit a curveball:

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

(Don’t forget to vote for the LexisNexis Top 25 Labor and Employment Law Blogs of 2011.)

Discrimination

• Handling discrimination complaints requires caution, training – from Judy Greenwald at Business Insurance
• “Will restricting criminal background checks actually increase minority unemployment?” – from Walter Olson’s Overlawyered
• Employees Have the Advantage At Trial in Getting to Speak First and Last – from Texas Employment Law Update
• “Best B*** J**s on the #8 Line” – from Phil Miles’s Lawffice Space
• Court Not “Up In the Air”: Travel for Work Does Not Violate “Familial Association” Right – from Dan Schwartz’s Connecticut Employment Law Blog
• Staking out the EEOC and its wave of ADA suits against employers – from Robin Shea’s Employment and Labor Insider
• EEOC: WalMart Refused to Accommodate Employee With Cerebral Palsy – from Joe’s HR and Benefits Blog
• Post-Pregnancy Protections – from The L•E•Jer
• Is Telling an Employee to Forget Her Dead Daughter Proof of a Hostile Work Environment? – from TLNT
• 7th Circuit: Internal Complaint About One Boorish Comment Was Not “Protected Activity” under Title VII – from ZR Workplace Law

Social Media & Workplace Technology

• Why Your Company Needs a Mobile Technology Policy – from hr bartender
• Social Networking in Wrongful Termination Cases – from Bow Tie Law’s Blog
• How to Deal with Facebook Fits and Twitter Tirades – from i-Sight Investigation Software Blog
• Government Employers Can (and Should) Have a Social-Media Policy, Part 1, and Part 2 – from Molly DiBianca’s Delaware Employment Law Blog
• Here’s How to Use Social Media for Retention Purposes – from The HR Capitalist, Kris Dunn
• Protecting Trade Secrets in the World of Social Media—Drawing Appropriate Lines – from Social Media, Esq.

HR & Employee Relations

• Employer Obligations When it Comes to Employees and Jury Duty – from Jason Shinn’s Michigan Employment Law Advisor
• Yes, Virginia, There Are Good Curse Words – from Settle It Now Negotiation Blog
• Why It Doesn’t Matter That Your Coworker Makes More Money Than You Do – from the Evil HR Lady, writing at BNET
• Are Salaries Secret? – from Texas Employer Handbook
• How to Write an Employee Handbook … The Great American Novel, or Just a Short Story? – from Michigan Employment Law
• Average Telecommuter Works Less Than One Hour Per Day – from Workplace Diva

Wage & Hour

• FMLA FAQ: How Many Intermittent FMLA Leave Hours is an FLSA-Exempt Employee Entitled To? – from FMLA Insights
• “Independent Contractors” Are Again Front-And-Center – from Wage and Hour Laws Blog
• Federal/State Cooperation on Independent Contractor Issue – from Michael Fox’s Jottings By An Employer’s Lawyer
• Exotic Dancers Are Employees Not Independent Contractors; Entitled to Minimum Wages and Overtime – from Overtime Law Blog
• Fourth Circuit Rejects Defense Attempt to Decapitate FLSA Collective Action – from Fitzpatrick on Employment Law
• “What happened when I got audited for I-9s” – from HR Daily Report

Labor Relations

• NLRB Pushes Unions’ Destructive Agenda – from The New American
• American businesses fight back against union-rights notice rule – from Eric Meyer’s The Employer Handbook
• U.S. Chamber Sues NLRB to Block Notification Rule – from the U.S. Chamber of Commerce
• Bill Would Abolish the National Labor Relations Board – from Labor Relations Counsel
• How Does Latest NLRB Ruling Apply to Background Checks? – from Nick Fishman’s employeescreenIQ Blog

EEOC lawsuit is a reminder that, yes, businesses can still discriminate

Yesterday, I wrote about how far we’ve come since 1943. Today, I bring you another reminder of how far yet we have to go.

The EEOC has announced a lawsuit it filed against Bass Pro Outdoor World, LLC, for failing to hire African-American and Hispanic applicants for positions in its nationwide retail stores. According to the EEOC:

Bass Pro has been discriminating in its hiring since at least November 2005. The EEOC’s suit alleges that qualified African-Americans and Hispanics were routinely denied retail positions such as cashier, sales associate, team leader, supervisor, manager and other positions at many Bass Pro stores nationwide.

The lawsuit alleges that managers at Bass Pro stores in the Houston area, in Louisiana, and elsewhere made overtly racially derogatory remarks acknowledging the discriminatory practices, including that hiring black candidates did not fit the corporate profile….

The lawsuit also claims that Bass Pro unlawfully destroyed or failed to keep records and documents related to employment applications and internal discrimination complaints. Bass Pro punished employees who opposed the company’s unlawful practices, in some instances firing them or forcing them to resign.

A lawsuit is merely a set of yet-to-be-proven allegations. And, as we’ve seen recently, the EEOC can overreach from time to time. Regardless of how much truth is behind these allegations, this lawsuit serves as an excellent reminder that overt racism can still exist, and employers need to be diligent about combating discrimination of all kinds.

We’ve come a long way, baby

1943 was only 68 years ago, which, in the grand scheme of things, was not far off. Yet, consider how far we’ve come, not the least of which in the area of personal liberties and civil rights.

Case in point? The Walt Disney Family Museum recently released the 1943 Disney employee handbook, entitled “The Ropes at Disney.” The handbook included this pre-Title VII gem:

My legal tip of the day—do not have a workplace policy that makes benefits available only to men (or whites, or Americans, or Christians, or, well, you get the point).

Other highlights include various nods to World War II, such as a selective service policy, and the inclusion of a violation of the United States Espionage Act among the grounds for termination. The company’s military severance pay policy strikes me as particularly progressive, but I’ll admit my ignorance on whether that type of policy was prevalent during the war.

Huge thanks to Tim Eavenson, who first posted about this on his Current Employment blog.

Update: Phil Miles, on his Lawffice Space blog, shares his thoughts as well,

Ohio Supreme Court clears up “clarity” element of wrongful discharge tort

Last summer, an Ohio appellate court concluded that retaliation against employees who raise concerns over fire safety violates a clear public policy generally favoring fire safety in the workplace. Last week, the Ohio Supreme Court took away the employee’s victory, and provides ammunition for employers to seek dismissal of vague and nebulous public policy claims.

Before we get to the specifics of Dohme v. Eurand Am., Inc. (9/15/11) [pdf], some background. In Ohio, the termination of an at-will employee usually does not give rise to an action for damages. If, however, a discharge that jeopardizes a clear public policy articulated in the Ohio or United States Constitutions, federal or state statutes, administrative rules and regulations, or common law may create a cause of action for wrongful discharge in violation of that public policy.

In Dohme, the plaintiff merely claimed that his termination “jeopardized workplace safety.” The appellate court saved his claim by articulating a public policy favoring workplace fire safety, supported by citations to various state and federal statutes and regulations. The Supreme Court correctly concluded that is not a court’s job to engage in a search and rescue for a public policy to support a wrongful termination claim:

As the plaintiff, Dohme has the obligation to specify the sources of law that support the public policy he relies upon in his claim. Because Dohme did not back up his assertion of a public policy of workplace safety in his summary judgment documents with specific sources of law, he has not articulated the clarity element with specificity. Unless the plaintiff asserts a public policy and identifies federal or state constitutional provisions, statutes, regulations, or common law that support the policy, a court … may not fill in the blanks on its own….

It’s a big deal whenever the Ohio Supreme Court issues an employment law decision. It only happens once or twice a year. This case, however, really is not that big of a deal. This case is more about the proper role of courts in litigation and less about the wrongful discharge tort. It sends a message to plaintiffs that it is not the role of courts to make sense of their claims for them.

What would Jesus pay? Day rates under the FLSA

So I sat in church yesterday morning listening to the parable about the workers in the vineyard. Since I’m Jewish and haven’t spent a whole lot of time inside churches, it was the first time I had ever heard this story. For those, like me, who aren’t familiar with it, the story concerns a man who, after hiring various workers to tend to his vineyard for an agreed day’s wage, paid them each the same amount, regardless of how many hours they actually worked. Those hired in the morning and worked a full day received the same wage as those hired late in the day who only worked an hour. Upon hearing this story, I thought two things: 1) Jesus might have been the world’s first socialist, and 2) this story would make really good blog post. So as not to rankle any more feathers than I already have, I’m not touching number one with a ten-foot poll. But, I will take on number two.

There is nothing illegal about paying a “day rate”—that is, a flat sum for a day’s work, without regard to the number of hours worked. Under the Fair Labor Standards Act, a day rate simply affects how an employer must calculate an employee’s regular hourly rate of pay for a work week. An employer calculates the regular rate for an employee paid a day rate by totaling all the sums received at such day rates in the work week and dividing by the total hours actually worked. As with any non-exempt employee, that regular rate cannot fall below the minimum wage. And, if an employee paid a day rate works more than 40 hours in a given week, the employer must pay time-and-a-half on top of the regular rate for any hours worked over 40.

Simple enough, even for a Jewish boy like me.

WIRTW #193 (the “naked tender” edition)

When cash went missing from a Popeyes Chicken franchise, an employee with a criminal history offered to strip naked to prove that she was not hiding the money. An Ohio appellate court concluded that her willingness to take her clothes off prevented her from suing for invasion of privacy:

Based upon the undisputed evidence, appellant voluntarily undressed in front of an assistant manager, while in a private bathroom, in order to show that she did not have the missing money on her person. Nobody asked her to undress. Rather, appellant was instructed that she did not have to undress, and she insisted in an attempt to exonerate herself. The expectation of privacy appellant now seeks to protect was lost when she undressed on her own volition.

The case is Turner v. Shahed Enterprises [pdf].

And now for something completely different…

Thanks to Cleveland Plain Dealer reporter Marcia Pledger for talking to me about social media, the NLRB, and the Hispanics United case. Her story—National Labor Relations Board sees increase in social-media complaints: Companies need guidelines—ran on this morning’s front page.

(Also, if you’ve not yet voted for the LexisNexis Top 25 Labor & Employment Blogs, what are you waiting for? September 30 will be here before you know it.)

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

Discrimination

• Are pregnant employees entitled to reasonable accommodation? – from Robin Shea’s Employment and Labor Insider
• Ten Commandments of Religious Discrimination – from Manpower Employment Blawg
• This old mother****** may just have an age discrimination claim – from Eric Meyer’s The Employer Handbook Blog
• Fifth Circuit Recognizes Hostile Work Environment Claim Under Age Discrimination in Employment Act – from Russell Cawyer’s Texas Employment Law Update
• ADA Ruling: Employer Not Required to Create New Positions to Accommodate Employee with Broken Leg – from SmartHR
• Obama’s American Jobs Act to Prohibit Discrimination Against the Unemployed – from Phil Miles’s Lawffice Space
• Arbitrating employment discrimination claims in the collective bargaining context: the future is far from certain – from SCOTUSblog
• What does a picture perfect accommodation look like? – from Warren & Hays Employment Law Blog

Social Media & Workplace Technology

• I’m a “Mac” Girl! – from Smelling Some Roses (full disclosure, my wife’s blog)
• Client Service: Sometimes You Have to Be Available 24/7 – from Cordell Parvin Blog
• Distracted company drivers (using cell phones) are costly for employers – from Employment Law Bits
• Corporate Search Warrant Protocol: Email to Employees – from From the Sidebar
• Blocking social media sites won't stop “time thieves” – from The Globe and Mail
• Should Your Social Media and Business Systems Policy Prohibit or Limit Fantasy Football in the Workplace? – from Employment Matters Blog
• Flyers Cracking Down On “Business Hours” Tweets – from The 700 Level
• Facebook Will Now Have A “Director of Privacy” – from Kashmir Hill’s The Not-So Private Parts
• The ethics surrounding lawyers Facebook friending people in connection with litigation – from Work Matters

HR & Employee Relations

• How to Fire Someone Without Getting Sued – from i-Sight Investigation Software Blog
• Hot Topics in HR – from Stephanie Thomas’s The Proactive Employer Blog
• Calling All HR Experts: Help This “Evil” Company – from Michael Haberman’s Omega HR Solutions
• Is It Okay To @*^%$#@ Swear At Work? – from Workplace Diva
• How Much to Keep Your Mouth Shut – from Compensation Cafe
• Thanks for the Contract. Can You Tell Me What it Says? – from Tim Eavenson’s Current Employment
• Jury Waivers Anyone? – from Rob Radcliff’s Smooth Transitions

Wage & Hour

• Groupon Lawsuit: Guess the FLSA Infraction… – from The HR Capitalist, Kris Dunn
• What a “Racquet”—U.S. Open Umpires Sue For Overtime – from Wage & Hour—Development & Highlights
• How to Calculate Overtime for Salaried Employees Who Also Receive Commissions – from Wage & Hour Insights
• Trouble Wage & Hour Statistics from the Dept. of Labor – from Wisconsin Employment & Labor Law Blog

Labor Relations

• Get Your New NLRB Posting From … The NLRB – from Dan Schwartz’s Connecticut Employment Law Blog
• Coming to a Bulletin Board Near You on November 14th, Or Maybe Not… – from Michael Fox’s Jottings By An Employer’s Lawyer
• Is Protective Activity Protected? – from LaborRelated

Testing the legality of employee personality tests

“You have a nice personality,
but not for a human being.”
  –Henny Youngman

At BNET, Suzanne Lucas (aka the Evil HR Lady) reports that more than half (56%) of companies do some form of personality testing before hiring people. Before you can conclude whether these tests help businesses make good hiring decision, you have to answer a very important threshold question—are they legal?

Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA. The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.

Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:

	Personality Test Is A Medical Exam	Personality Test  Is Not A Medical Exam
Prior to an offer of employment:	Personality tests are prohibited.	No limits on the use of personality tests.
After an applicant is given a conditional job offer, but before s/he starts work:	Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category.	No limits on the use of personality tests.
After employment begins:	Personality tests are permitted only if they are job-related and consistent with business necessity.	No limits on the use of personality tests.

What does all this mean? The use of personality tests raise complex legal and business issues. If you are considering using personality tests to screen applicants or current employees, tread carefully and not without the input of your employment counsel.

I’m honored to be one of LexisNexis’s Top 25 Labor & Employment Blogs

LexisNexis has released the final nominees for its list of the Top 25 Labor & Employment Blogs, and I am honored and humbled to announce my inclusion. The criteria for inclusion:

The honored blogs contain a wealth of information for employment and labor law practitioners, with timely news items, practical information, expert analysis, tips, frequent postings, and helpful links to other sites.

If you are so inclined, polls are open until September 30 for you to vote for the Top Labor and Employment Law Blog of the Year. If you’re not registered with LexisNexis, this link will allow you to create a free registration or to use your sign-in credentials from your favorite social media site (they promise no sales calls). You can then follow this link to vote.

Thanks to all who nominated me and to all who will vote, whether it's for my blog or those of the 24 other worthy nominees, many of whom I have gotten know over the years and consider friends. It’s an honor to be included in your company.

Disability claims definitely on the EEOC’s radar

I am often asked how I come up with ideas to post 5 days a week, every week. While the answer is a closely guarded secret, I will allow a little insight—the EEOC’s website is a wealth of information. Every news release by the agency announcing a new lawsuit or a settled claim presents an fresh blogging opportunity.

Recently, I’ve noticed an inordinate number of lawsuits filed by the EEOC claiming disability discrimination. So, I did a little digging. In the last 3 months, the agency has announced the filing of 54 new lawsuits. Of those, 22, or a staggering 41%, allege disability discrimination. The rate of filing is even higher when you consider that according to the EEOC's latest charge statistics, only 25% of all charges filed with EEOC contain a claim of disability discrimination. The agency is filing lawsuits at a rate 60% higher than it is receiving claims. These statistics should signal to employers that the agency is scrutinizing how you are handling your disabled workforce.

As I thought about these numbers, I also thought back to Sunday's season finale of Curb Your Enthusiasm, titled, Larry v. Michael J. Fox. Apparently a very good sport, Fox allowed Larry David to ask the age-old question, “Pissed or Parkinson’s?” Larry had shushed Fox while Larry’s girlfriend was playing piano in a lounge, and spent the better part of the episode trying to figure out if Fox’s subsequent behavior (a head shake, an shaken soda, a bump-into) was from anger stemming from the shush, or Fox’s Parkinson’s.

Kudos to Fox for not hiding from his disability, but using it humorously to raise awareness. Perhaps if more people approached disabilities in this open and inclusive manner, we’d have less of a need for EEOC lawsuits.

EEOC sues for disabled shoplifter

As a parent of two small children, I am very cognizant of the importance of leading by example. For example, I don’t want them to them text-and-drive when they are older. So, I try my hardest (and, it’s hard) not to pick up my mobile while they’re in the car with me.

Last week, the EEOC announced that it had filed suit on behalf of a diabetic (and terminated) Walgreens employee who ate a bag of chips off a store shelf:

According to the EEOC, Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar)…. Walgreens knew of her diabetes. Nevertheless, Walgreens fired her after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first. If customers see an employee consuming merchandise without paying first, they might think it’s allowed by the store, which makes shoplifting and loss prevention that much more difficult for the employer to control.

There are no hard and fast rules about reasonable accommodations or undue hardships. One employee’s reasonable snack is another employer’s unreasonable exception to an important and unbending rule. I’m not saying that this employer should have ignored the employee’s diabetes in reaching its termination decision, but this case is not nearly as one-sided as the EEOC’s self-serving news release makes it appear.

WIRTW #192 (the “Fly, Eagles Fly” edition)

Man, am I ready for some football!

Also, this is my last pitch for nominations for the ABA Blawg 100 (closes today) and the LexisNexis Top 25 Labor & Employment Law Blogs (closes Monday). Thanks for your support.

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

Discrimination

• The Connection Between Fantasy Football Leagues and Employment Law – from Dan Schwartz’s Connecticut Employment Law Blog
• The Scooter Store ... yadda, yadda, yadda ... disability bias? – from Eric Meyer’s The Employer Handbook Blog
• “ADA lawsuits questioned after serial plaintiff claiming emphysema caught on tape hiking” – from Walter Olson’s Overlawyered
• Age bias in IT: The reality behind the rumors – from Computerworld
• Employment of Women: Survey of Issues & Initiatives—Workplace Flexibility – from George’s Employment Blawg
• Workplace Religious Freedom Act Expands Protections Against Religious Discrimination – from New York City Employment Lawyer (and congrats to my friend and law school classmate, Amardeep Singh, on getting this passed)
• Rastafarian stands ground on faith – from Roanoke.com

Social Media & Workplace Technology

• Ethical and Legal Workplace Monitoring – from Dawn Lomer at i-Sight Investigation Software Blog
• Hacking Fears Prompt Workplace Social Media Ban – from the Wall Street Journal’s Tech Europe Blog
• TMI? I Don't Really Need To See Your Hamstring – from Social Media Employment Law Blog
• Court Imposes Social-Networking Policy – from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Reasons to Say Goodbye to an Employee – from Workplace Insights
• The 12 Quickest Ways to Get Fired – from Fox Business
• Is It Okay To Fire Someone Over the Phone? – from Workplace Diva
• Gathering Documents in a Workplace Investigation – from Debra Reilly’s Workplace Investigations Blog
• Document Now, Fire Later – from Virginia Employment Law Journal
• There’s more to the office than “The Office” – from salon.com

Labor Relations

• Seinfeld and Labor and Employment Law – from LaborRelated
• Has NLRB Commenced a Big Anti-Business Push? – from The ChamberPost
• Board Holds Employer’s Discovery Requests in Non-Board Litigation Violated NLRA – from Labor Relations Counsel
• NLRB Social Media Memo Part III - Union YouTube Violation – from Phil Miles’s Lawffice Space
• Bill Would Repeal the NLRB’s Employee Rights Notice Posting Rule – from Labor Relations Counsel
• The NLRB’s Unlawful Rule – from National Review Online

6th Circuit volunteers gift to volunteer employees in coverage under Title VII

Lots of people work for free—volunteers, interns, students, and others all provide their time to businesses without receiving any pay in return. Last week, the 6th Circuit, in Bryson v. Middlefield Volunteer Fire Dep’t, decided whether a “volunteer” (a presumably, the other categories of unpaid workers) qualifies as an employee covered by Title VII. The trial court had concluded that Bryson, a volunteer firefighter, did not qualify under Title VII solely because the Department did not pay him.

The 6th Circuit concluded that merely looking at whether or not a volunteer is paid is insufficient. Instead, employers must also examine the degree of control exercised by the employer over the manner and means by which the work is accomplished. In evaluating the degree of control, employers must look at all of the following factors:

• The skill required
• The source of the instrumentalities and tools
• The location of the work
• The duration of the relationship between the parties
• Whether the hiring party has the right to assign additional projects to the hired party
• The extent of the hired party’s discretion over when and how long to work
• The method of payment
• The hired party’s role in hiring and paying assistants
• Whether the work is part of the regular business of the hiring party
  Whether the hiring party is in business
• The provision of employee benefits
• The tax treatment of the hired party

Because Bryson expands Title VII’s coverage, this case reinforces the idea that employers should not use unpaid help without legal guidance. The DOL is looking over your shoulders. The EEOC is looking over your shoulders. Courts are looking over your shoulders. And, your unpaid help is looking over your shoulders. A misstep in how you categorize employees could be a costly mistaken on these multiple fronts.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

NLRB finally gives some real-world guidance on social media as protected, concerted activity

In the NLRB's final act before the long Labor Day weekend, an Administrative Law Judge in Buffalo, NY, issued his decision in Hispanics United—the first written decision in an NLRB case involving social media to result in an ALJ decision following a hearing.

In Hispanics United, five employees claimed that their terminations—on the heals of a Facebook discussion critical of another employee’s job performance—violated their rights under the National Labor Relations Act to join together to discuss the terms and conditions of their employment. The ALJ agreed:

I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.

The ALJ made several key observations about the Board’s treatment of social media posts as protected, concerted activity:

• “It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to Respondent…. I find that the discriminatees’ discussions about criticisms of their job performance are also protected.”
• “[A]n employer violates Section 8(a)(1) in disciplining or terminating employees for exercising this right—regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”
• “Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted.”

This case stands for the proposition that social websites are akin to a digital water cooler. If you wouldn’t discipline for water-cooler talk, then you shouldn’t for social media posts. The difference, though, is that social websites leave a digital trail that makes them tempting fodder for the types of retribution that will result in unfair labor practice charges.

Last month, the NLRB’s Office of General Counsel began to provide some clarity on when and how employees' social media activities are protected. Hispanics United provides added clarity, and should give employers added concern over their ability to regulate their employees’ use of social media inside and outside of the workplace. This case likely will now head to Washington, DC, for disposition by the NLRB. Perhaps we will finally receive some needed guidance from the Board on what has become a beguiling issue for businesses.

(In the meantime, if you want to know about these issues, pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace).

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Pregnancy as disability discrimination: New ADA vs. Old ADA

A year ago, the 6th Circuit concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify for protection under the ADA. Late last month, the 7th Circuit—in Serednyj v. Beverly Healthcare—took up the same issue with a different result. Employers looking for help in dealing with pregnant employees should not celebrate too quickly. Because Serednyj’s termination occurred before the ADAAA took effect, its impact will be short-lived.

Serednyj involved a non-FMLA-eligible employee terminated after her doctor placed her on light duty for pregnancy-related complications. The court agreed that Serednyj’s complications constituted a “physical impairment” under the ADA. It upheld the dismissal of her ADA claim, though, because the short-term nature of her pregnancy meant that it did not “substantially limited a major life activity.”

Serednyj claims that her physical impairment substantially limited her major life activities of reproduction and lifting…. Pregnancy is, by its very nature, of limited duration, and any complications which arise from a pregnancy generally dissipate once a woman gives birth. Accordingly, an ADA plaintiff asserting a substantial limitation of a major life activity arising from a pregnancy-related physiological disorder faces a tough hurdle…. Serednyj’s pregnancy-related complications did not last throughout her pregnancy or extend beyond the time she gave birth.

This case is an illusory victory for employers. Under the ADAAA, which took effect January 1, 2009, the effects of a short-term impairment (one lasting fewer than six months) can be substantially limiting. Employers no longer can expect to be helped by the limited duration of any medical condition (including pregnancy). As the ADAAA’s regulations make clear: “the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.”

Under a current ADA analysis, I have no doubt that Beverly Healthcare should have accommodated Serednyj’s pregnancy complications by granting her light duty. Despite the employer’s victory in this case, businesses should heed it as a warning that the rules for handling all employee medical conditions—including pregnancy—have radically changed.

[Hat tip: The Employer Handbook]

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Happy Labor Day

Like most, I’m off today. The Department of Labor, though, never sleeps. It has an entire micro-site that celebrates today’s holiday:

http://www.dol.gov/laborday/

Happy Labor Day. Enjoy your BBQs. I’ll be back tomorrow with a story on the treatment of pregnancy as a disability under the ADA.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #191 (the “Come on Irene” edition)

Bad puns aside, last weekend was not a good one for the Northeast. Other than an extended power outage, Irene’s worst spared my family in suburban Philly. Others were not so lucky. A Lesson In Social Media from Hurricane Irene, from Dan Schwartz’s Connecticut Employment Law Blog, is a must read for everyone.

As for other stuff to read this week, how about:

• The ABA website, to enter your nominations for the ABA Blawg 100 (until Sept. 9)
• LexisNexis, to enter your nominations for the LexisNexis Top 25 Labor & Employment Law Blogs (until Sept. 12)

You don’t need to vote for me (although it would be nice) but you should vote. I think I can speak for all of my fellow bloggers when I say that we appreciate it.

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

Discrimination

• 10 steps to take when responding to an EEOC complaint – from Business Management Daily
• Will the EEOC Limit Employers from Using Criminal Background Checks? – from i-Sight Investigation Software Blog
• Does Discrimination Still Exist? Of Course It Does – from Donna Ballman at the Huffington Post
• EEOC: drinking history no reason to withhold heavy trucking jobs – from Walter Olson’s Overlawyered
• “Ugly” Ain’t a Protected Class – from Texas Employer Handbook
• 11 Employer FAQs (No. 5): Is there any difference between light duty and reasonable accommodation? – from Robin Shea’s Employment & Labor Insider
• Employer-Sponsored Wellness Programs under GINA – from Employment Matters Blog
• Eyewitness Evidence Critique May Help In Harassment Defense – from Employer Defense Law Blog
• Thou Shalt Not—When Can Religion Be Considered in Employment? – from Iowa Employer Law Blog

Social Media & Workplace Technology

• FINRA Addresses Smart Phone Use by Brokers – from Rob Radcliff’s Smooth Transitions
• If Lady Gaga tweets your trade secret, is it still a trade secret? – from Eric Meyer’s The Employer Handbook Blog
• Trade Secrets on the Internet – from Russell Beck’s Fair Competition Law
• Truthful Blogging = Tortious Interference with Contract? – from Philip Miles’s Lawffice Space
• Employer Blind-Sided by Employee's Inglorious Web Usage – from Case In Point
• Adult Use of Social Media Soars – from Sarah Needleman at the Wall Street Journal’s In Charge Blog
• Do You Do Social Media Background Checks? – from fyiscreening.com
• Private Schools and Social Media – from Brian Wassom’s Augmented Legality
• Social Media Policies are Critical for Managing Online Legal Issues – from Richman Greer Blog

HR & Employee Relations

• What’s the Harm in a Little Workplace Porn? For Starters, Unemployment Benefits. – from Jason Shinn’s Michigan Employment Law Advisor
• Kissing on the Job – from Workplace Prof Blog
• Would You Take A Polygraph To Get A Job? – from Workplace Diva
• Background Checks Gone Wild Hurt Us All – from Nick Fishman at employeescreenIQ Blog
• Don’t Send Conflicting Messages to Employees – from KnowHR
• When Entitlement Meets Unemployment – from Harvard Business Review
• Legal Considerations When Terminating An Employee – from Virginia Employment Law Journal
• You “Tolled” Me My Non-Compete Only Lasts a Year!! – from Trade Secrets & Non-Compete Blog

Wage & Hour

• Interesting Wage & Hour Enforcement Statistics – from Wage & Hour Insights
• Wage & Hour Lawsuits Cost Both Big and Small Companies – from Mike Haberman’s Omega HR Solutions
• You Can’t Make Someone Salaried to Avoid Overtime Payments – from Evil HR Lady, Suzanne Lucas
• Unusual Resume Stories Include Wage and Hour Item – from Wage & Hour Tips
• World’s Scariest Employment Law – from Manpower Employment Blawg
• Survey: Workers Frequently Call in Sick When They Aren’t Sick at All – from TLNT

Labor Relations

• What You Don’t Know About the NLRA Might Hurt You – from Patrick Smith’s Iowa Employment Law Blog
• How Walmart Avoids Unions by Cracking Down on Baby Shower Committees – from Workplace Fairness
• Ohio union law ballot issue faces Monday deadline – from Businessweek
• NLRB Issues Decisions Barring Decertifcation Petitions Following Voluntary Union Recognition, Mergers or Acquisitions – from Seth Borden’s Labor Relations Today
• Blizzard part 2: NLRB Reverses Dana and MV Transportation – from Labor Relations Update

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Can a handbook policy bind an employee to arbitration? 6th Circuit says no.

We spend a lot of time debating the respective merits of fine point of the law. The reality, however, is that judges are people too. Despite their training, robes, and gavels, the decision of many cases comes down to one key fundamental question: did one side treat the other side fairly? Courts don’t like litigants that try to pull a fast one.

Hergenreder v. Bickford Senior Living Group [pdf] provides a perfect example. It also illustrates why arbitration of employment disputes often is a losing battle.

Bickford filed a motion to compel Hergenreder to arbitrate her disability discrimination case under an arbitration clause buried in its employee handbook. Section 12 of the 16-section handbook—for which Hergenreder had signed an acknowledgment that she had read and understood its terms—provides as follows: “Dispute Resolution Process  Please refer to the Eby Companies Dispute Resolution Procedure (DRP) for details.” The separate, 20-page DRP, in turn, required that employees submit all claims to arbitration. The employee testified that she never saw the DRP, let alone signed for it.

The court concluded that simple inclusion of a reference to the DRP in the handbook did not constitute a binding and enforceable contract between Hergenreder and Bickford to arbitrate all employment claims:

The best Bickford can say is that Hergenreder was informed that, for “Employee Actions,” she should “refer” to the DRP. In Bickford’s view, Hergenreder “was or should have been aware of the DRP and so is bound by it.” Yet she was not required to refer to the DRP; the “handbook does not constitute any contractual obligation on [Hergenreder’s] part nor on the part of Bickford Cottage[.]”

[T]here is no evidence that the DRP was “posted” in a place—either physical or electronic—available to Hergenreder, that there were meetings at which Hergenreder was notified of the policies, or that Hergenreder was aware of the DRP at all…. Bickford does not argue that it actually distributed or made the DRP available to Hergenreder.

Employers, if you are going to require employees to arbitrate their claims against you, do yourself a favor and at least have the employee sign a separate arbitration agreement. You might succeed on enforcing an alternative form of an alternative dispute resolution agreement (such as a handbook clause). But, you will spend the money you perceive you are saving through arbitration by trying to enforce your right to arbitrate.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.