Monday, April 14, 2014

It's illegal to ask employees to give up overtime payments


If a non-exempt employee works more than 40 hours in a work week that employee is entitled to overtime at the required rate of 1.5 times the regular rate of pay. What if, however, an employee says they’d rather forego the overtime premium than not work the extra hours at all? A Cleveland security company learned the hard way that employees cannot volunteer to work overtime at less than the required premium rate.

According to Cleveland.com, Citywide Protection Services has agreed to pay $14,760 in back overtime pay to 30 security guards following a Labor Department investigation. The comapny’s excuse for not paying overtime? The employees asked.
George Lewandowski, Citywide Protection Services’ president, said he was being characterized as a bad guy when all he had tried to do was help out his employees. Lewandowski said workers kept demanding overtime hours because they needed money.…
“I have a lot of employees who don’t make a lot of money, and they have a lot of kids, so they ask for a lot of extra hours,” he said. “I told them that I really can’t afford to pay all those extra hours, but a lot of them kept begging for hours, just begging for hours.
“I said: ‘I can’t pay the overtime. I’ll let you work at straight time,’” Lewandowski said. “They were aware that I could not pay the overtime—no matter what!”
It does not matter whether your motives are altruistic or malicious when avoiding overtime payments. If a non-exempt employee works more than 40 hours in a week, you must pay them overtime. Period. No exceptions. Employees cannot ask to work the extra hours at their regular rate. They cannot choose between receiving less than the full overtime premium and no overtime hours at all. Otherwise, you might find yourself on the receiving end of a DOL investigation or collective lawsuit, neither of which is an option you want for your business.

Friday, April 11, 2014

WIRTW #316 (the “en francais” edition)


From Mashable:

Employers’ federations and two unions in France signed a “new, legally binding” labor agreement on Thursday that encourages some staff to turn off their phones after 6 p.m., in an effort to curb burnout and promote a healthy work-life balance.

According to the deal, the employees covered under the agreement are not supposed to tend to their work-related emails on their computers or smartphones after the 6 p.m. deadline. The onus lies on employers to ensure that their employees don’t feel the need to work after hours (or pressure them to do so).

The upside? No work emails after 6 pm. The downside? Hundreds of work emails to tend to first thing at 8 am. I think I’ll keep my after-hours email.

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, April 10, 2014

6th Circuit sends strong signal to EEOC in affirming dismissal of systemic lawsuit


Last January, a Cleveland federal-court judge dismissed a race discrimination lawsuit brought by the EEOC against Kaplan Higher Learning. In that case, the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. To support its claim, the agency retained an expert witness to rate (i.e, guess) the unknown races of various job applicants based on how they appeared in DMV records. The district court excluded the expert, concluding that his “opinion” was nothing more than guesswork that resulted in inherently unreliable data. With no expert testimony to support its claim, the court dismissed the EEOC’s lawsuit.

Yesterday, in a terse opinion issued a mere 20 days after oral argument, the 6th Circuit affirmed the district court’s dismissal. Here is the entirety of the 6th Circuit’s legal analysis:
We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding Murphy’s testimony.
This case sends a strong signal to the EEOC that it cannot use junk science to further its agenda of eliminating systemic discrimination. What is so striking of the opinion is the brevity of the Court’s four-line analysis. That the 6th Circuit could make quick work of such an important issue speaks volumes of how little it thought of the EEOC’s litigation strategy.

Yet, the Kaplan case is less about whether credit histories disparately impact African Americans than it is about how the EEOC chose to prove its case. Kaplan did not win this case so much as the EEOC lost it by using junk science to support its claim. Employers should see this case for what it is — a stinging rebuke of the EEOC’s litigation tactics — and nothing more. Employers should not take this case as a license to deploy screening practices that might disparately impact applicants based on race, lest you end up the receiving end of the next EEOC lawsuit.

Wednesday, April 9, 2014

Has workplace drug testing gone to pot with legalized marijuana?


Late last year, I asked the following question: Can an employer fire an employee who tests positive for legally prescribed marijuana? It appears that employers are indeed struggling with this question. New Jersey transit is the latest employer to be sued as a result of an employee’s use of legal marijuana. NJ.com reports that an employee has sued the transit agency for disability discrimination after it suspended him and sent him into rehab because he is a registered patient with the state’s medical marijuana program.

This case is the latest challenge by an employee who suffered at work through the legal use of marijuana. So far, the employer has won each of these challenges on various legal grounds (see here, here, and here).

Medical marijuana is legal in 20 states plus the District of Columbia. Ohio is not one of these states. Nothing, however, would stop one of your Ohio employees from legally using while on vacation in Colorado, for example. Regardless, marijuana remains illegal under federal law. And, the ADA does not protect employees under the influence of illegal drugs. Thus, I remain confident that you can legally prohibit employees from being under the influence of marijuana while on the job, even if its legally prescribed. As for the lawful use of marijuana by employee outside of work, there is no clear rule of law, even if the cases so far seem to support an employer’s right to regulate. Until the courts sort these issues out, prudent employers should tread carefully and consult with their employment counsel before disciplining or firing any employees who are using legally prescribed marijuana away from work.

Tuesday, April 8, 2014

Differences of opinion show why we need ENDA


In response to last Tuesday’s post on an Ohio case refusing to protect “sexual orientation” under Ohio’s sex-discrimination laws, EEOC Commissioner (and Twitter friend) Chai Feldblum recommended that I check out a recent decision from the District of Columbia, Terveer v. Billington.

In that case, Peter Terveer, a Library of Congress employee, sued his supervisor for sex discrimination, alleging that the supervisor had created “a hostile environment” by subjecting him to a slew of anti-gay comments.

The employer argued for the dismissal of Terveer’s complaint, since Title VII does not include protections against sexual-orientation discrimination. The court disagreed, and permitted Terveer’s case to proceed under Title VII’s protections from sex discrimination and religious discrimination:
Under Title VII, allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim.… Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male sex stereotypes.… 

Title VII seeks to protect employees not only from discrimination on the basis of their religious beliefs, but also from forced religious conformity or adverse treatment because they do “not hold or follow [their] employer’s religious beliefs.” … [P]laintiffs state a claim of religious discrimination in situations where employers have fired or otherwise punished an employee because the employee’s personal activities or status—for example, divorcing or having an extramarital affair—failed to conform to the employer’s religious beliefs.… The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual.
This article at Slate.com argues that Terveer shows that anti-gay job discrimination is already illegal. To the contrary, the more prudent conclusion is that Terveer, when contrasted against Burns v. The Ohio St. Univ. College of Veterinary Medicine (the Ohio case I discussed last Tuesday), demonstrates that different courts can, and do, reach different conclusions on this issue. Instead of showing that anti-gay discrimination is already illegal, these cases illustrate the need to amend Title VII to make it absolutely clear that sexual-orientation discrimination is not only abhorrent, but is also illegal.

Monday, April 7, 2014

It’s okay to “gossip” in the workplace, as long it’s not “negative,” says the NLRB


Earlier this year, I noted that the NLRB is starting to examine workplace gossip policies. Last week, the NLRB reminded us of the importance of avoiding broad-based prohibitions on workplace communications.

In Hills & Dales General Hospital [pdf], the NLRB found unlawful (most of) each of the following three provisions of the employer’s “Values and Standards of Behavior Policy.”

11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The NLRB concluded that paragraphs 11’s and 21’s prohibitions on “negative comments” and “negativity” are illegal because an employee could reasonably construe those policies “to bar them from discussing with their coworkers com- plaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.”

The NLRB also concluded that paragraph 16’s “requirement that employees ‘represent [the Respondent] in the community in a positive and professional manner’ is just as overbroad and ambiguous.” According to the Board, employees would reasonably view the language “as proscribing them from engaging in any public activity or making any public statements (i.e., ‘in the community’) that are not perceived as ‘positive,’” such as discouraging employees from “engaging in protected public protests of unfair labor practices, or from making statements to third parties protesting their terms and conditions of employment.”

There are two points of note from this opinion:

  1. There was no allegation that the employer had disciplined or terminated any employee under any of the challenged rules. Nevertheless, the Board concluded that it could still find the work rules facially invalid. Thus, this case serves as a reminder that a policy could be illegal whether or not you act on it; merely having the policy is enough for the NLRB to take action.

  2. The NLRB takes no issue with paragraph 21’s prohibition on “gossip.” Indeed, in the underlying ALJ decision, the judge noted that paragraph 21 “would arguably be on solid ground” if limited only to a prohibition on gossip. If workplace gossip is a toxic cause of discontent in your workplace, this case may serve as a signal that a narrowly drafted no-gossip policy may pass scrutiny by the NLRB, as long as you don’t include “negativity” in your prohibition.

Friday, April 4, 2014

WIRTW #314 (the “pale force” edition)


Meet my new best friend, the very funny Jim Gaffigan, pictured with my other best friend (my wife) and me:

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, April 3, 2014

If you don't want anti-bullying legislation, give me a “Hell Yeah!”


Bullying in the workplace isn’t illegal, unless it’s bullying because of some protected characteristic (sex, race, etc.). Yet, just because something is legal doesn’t mean it should be condoned.

According to Today’s General Counsel (citing the Workplace Bullying Institute’s 2014 US Workplace Bullying Survey [pdf]), an astounding 72% of employees report that their employers have not done anything to curb bullying in the workplace.

The quickest way to ensure that generalized workplace bullying becomes illegal is for employers to continue to ignore it. If employees continued to report that they are being bullied, and that their employers are not doing anything to stop it, legislatures will step in and pass anti-bullying laws.

So, what should you do? Treat bullying like it’s illegal. Create a workplace culture in which bullying is not permitted to occur.

  • Include bullying in your anti-harassment or other workplace conduct policies.
  • Train your employees about how you don't allow bullying, and what to do (i.e., how to report) incidents of bullying. 
  • When an employee complains about bullying, don’t ignore it, investigate it. 
  • After the investigation, implement corrective actions, commensurate with the severity of the conduct, to reasonably insure that it does not reoccur.

You might think it’s okay to ignore bullying in your workplace because there is no law against it, but legislatures won’t. They will fill the void with laws that you will not like (and, if the Workplace Bullying Institute’s survey is anywhere close to accurate, 72% is a big void). Do right by your employees. Do not give legislatures any reason to pass over-reaching laws that will hamper your ability to manage your employees.

Heed these words, which I wrote all the way back in 2011:
Businesses need to have the discretion to manage their workforces. Anti-bullying laws will eviscerate that discretion. Just because generalized bullying is not illegal does not mean that employers lack incentive to act preventively and responsively. To the contrary, the marketplace creates the incentive to treat employees well. Bad bosses beget revolving-door workforces, doomed to failure. Good bosses create loyalty and retain good employees, which breeds success. Imposing liability merely for being subjected to a bad boss sets a dangerous precedent that will eliminate the “at will” from all employment relationships.
Or, to put it in simpler terms, do the right thing, or the government will eventually make you.

Wednesday, April 2, 2014

Social-cultural discrimination does not equal race discrimination


Does a policy that prohibits employees from wearing dreadlocks discriminate against African-Americans? According to one federal court, in EEOC v. Catastrophe Management Solutions [pdf], the answer is no.

CMS maintained the following policy, which it interpreted to prohibit employees from wearing dreadlocks:

All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines … hairstyles should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.

The EEOC claimed race discrimination following CMS’s rescission of a job offer after a job applicant refused to cut her dreadlocks. The court, however, disagreed, dismissing the EEOC’s lawsuit. The court made a key distinction between immutable, protected characteristics (such as race) and mutable, unprotected characteristics (such as hairstyle):

It has long been settled that employers’ grooming policies are outside the purview of Title VII…. The EEOC asserts that the policy itself was discriminatory because it was interpreted to prohibit dreadlocks, which is a hairstyle. Title VII prohibits discrimination on the basis of immutable characteristics, such as race, sex, color, or national origin. A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic….

The court also refused to take the EEOC’s bait to equate culture to race:

According to the EEOC, the definition of race should encompass both physical and cultural characteristics, even when those cultural characteristics are not unique to a particular group. But as the defendant points out, to define race by non-unique cultural characteristics could lead to absurd results. For instance, a policy prohibiting dreadlocks would not apply to African Americans but would apply to whites. Moreover, culture and race are two distinct concepts….

Title VII does not protect against discrimination based on traits, even a trait that has a socio-cultural racial significance.

I’ve discussed dreadlock discrimination before, but in the context of religious discrimination. In this context, the court got this case 100% correct. Dreadlocks are not a “black” thing. Heck, if you saw any of the photos of 2011’s Occupy Wall Street movement, I can guarantee that you saw lots of photos of white folks with dreadlocks. Nevertheless, this case serves a good reminder that grooming policies remain high on the EEOC’s radar, even if they raise much more of an issue for national origin and religion than race.

Tuesday, April 1, 2014

Sexual-orientation discrimination ban to become law


My apologies if the headline baited you in, but today is April Fools’ Day, and, no, neither Congress nor Ohio’s legislature is close to amending any workplace discrimination laws to include sexual orientation as a protected class.

But, they very much need to.

I read with great interest a series of opinion pieces in last week’s New York Times, entitled, If Gays Can Marry and Be Fired for Doing So. Among the authors was EEOC Commissioner (and Twitter friend) Chai Feldblum, who argued that marriage equality laws demonstrate that Title VII already protects sexual-orientation discrimination as sex discrimination. On Twitter, I asked Chai if, in light of her op-ed, she believes that we do not need to amend Title VII expressly to include sexual orientation. Her response?
If you need any greater reminder of the need for the Employment Nondiscrimination Act (ENDA), which would amend Title VII to include sexual orientation and gender identity, look no further than Burns v. The Ohio St. Univ. College of Veterinary Medicine, decided last week by an Ohio appellate court. That case dismissed a claim by a lesbian veterinary resident because Ohio’s workplace discrimination laws do not cover “sexual orientation.”
Each appellate district in this state that has considered such a claim has concluded that the term “sex” in R.C. 4112.02(A) does not include sexual orientation.… Likewise, courts analyzing the analogous provision of Title VII have held that, for purposes of that law, “sex” does not include sexual orientation.…
In this appeal, appellant unabashedly argues for a change in the law. However, this claim and this court are not the forum for achieving the change that appellant seeks.… Legislative measures proposing to amend R.C. Chapter 4112 and Title VII to add the term “sexual orientation” have been, as yet, unsuccessful.… Under our system of separation of powers, this court’s role is limited to interpreting and applying R.C. Chapter 4112 as it currently exists.
Readers, now is the time to end sexual orientation and gender identity in the workplace. It is foolish that we, as a supposedly enlightened society, cannot decide that it’s not okay to discriminate. Let’s end this foolish practice, and send a signal to all of our citizens that we truly are the land of the free and the home of the brave.

Monday, March 31, 2014

What Ben Franklin teaches us about employment law (the #SCOTUS edition)


Some people head to the beach for Spring Break. I head to Philadelphia. An extended school break for my kids provides a good opportunity to visit my family. Plus, we have had a German daughter in our house since August (a 10th grade exchange student), and we promised her that we’d show her some good old fashioned American history.

In walking around Old City, is becomes very apparent that Philly is Ben Franklin’s city.

Among Franklin’s pithy quotes, his most memorable might be, “In this world nothing can be said to be certain, except death and taxes.”

Last week, the U.S. Supreme Court reminded us of this fact in United States v. Quality Stores [pdf]. The issue in the case was whether severance payments made by an employer to an employee are “wages” for purposes of FICA’s payroll tax. The Court unanimously ruled that severance payments are “wages” subject to FICA, reversing the 6th Circuit. IF you are looking for a more detailed analysis of the Court’s reasoning, head over to SCOTUSblog.

This decision seems to be common sense. If, however, you had previously been following the reversed ruling of the 6th Circuit, you need to change your practices and start withholding FICA’s payroll taxes from the severance payments you make to employees. There are lots of radars on which you, as an employer, do not want to appear. As certain as Mr. Franklin was about death and taxes, I am certain that the IRS’s radar tops that list.

Friday, March 28, 2014

WIRTW #313 (the “March madness” edition)


Yesterday, I shared my thoughts on the NLRB’s historic (yet preliminary) ruling on scholarship student athletes as employees. I argued that treating these students as employees could require their employer (the university) to pay them overtime. What other unintended results could this ruling have?

  • As one of my Twitter friends asked, will these students have to pay income tax on the value of their scholarships?
  • Will injured athletes be entitled to FMLA leave?
  • What about reasonable accommodations for injured athletes under the ADA?
  • Or what about health insurance coverage under the ACA’s mandate?
  • Will recruiting practices be scrutinized for disparate impact?

As you can see, this case asks more questions than it provides answers. The only answer I do know is that the NLRB kicked a hornet’s nest, and it is going to take years for the swarm to settle itself.

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, March 27, 2014

The wage-and-hour implications of the NLRB’s Northwestern football player ruling


By now you’ve likely heard that yesterday a regional director of the National Labor Relations Board ruled that Northwestern University’s scholarship athletes are “employees” of the university covered by, and entitled to organize under, the National Labor Relations Act. Labor Relations Today has one of the best summaries and analysis of the opinion I’ve read.

Before everyone starts forecasting the end of college athletics, we need to the remember that this opinion is only the opinion of one person. This case is far from over. Northwestern has already said that it will appeal to the full NLRB in Washington. No matter the result there, the losing party will appeal again to the 7th Circuit. Ultimately, the Supreme Court may weigh in. In other words, this case is years from a resolution. In the meantime, however, expect more petitions to be filed by other groups of athletes at other universities seeking to organize.

The implications of this story, however, go beyond labor unions and the NLRA. If student athletes are “employees” under the NLRA, it is not that much of a stretch for a court to conclude that they are also employees under other federal statutes, like the FLSA. If the FLSA covers college athletes, they are entitled to be paid at least the minimum wage, plus overtime for any hours worked more than 40 in a week. To calculate their regular rate of pay, one would prorate the value of their scholarships over the number of weeks “worked,” and then again by the number of hours worked in each week.

The universities will have arguments. Are their football programs exempt as seasonal? Are the student athletes exempt as creative professionals? These arguments, however, are a stretch. I believe there is a serious risk that if scholarship athletes are “employees” (and that remains a big if), then they are likely owed minimum wage and overtime. In other words, the Northwestern case has huge implications beyond collective bargaining.

This story will continue to evolve over the next many years, and I will keep you updated throughout its twists and turns.

Wednesday, March 26, 2014

"Motorboating" = $567K harassment verdict


A Galveston, Texas, jury has awarded $567,000 in damages to a former deputy constable who claimed sexual harassment by his former boss. The catch is that the harasser is female and the victim is male.

James Gist claimed that his former boss, Pam Matranga, gave him unwanted lap dances and forced him to “motorboat” her by placing her shirt over his head and holding his face against her breasts.

For her part, Matranga did not deny that she let employees put their heads under her shirt. The Daily Mail quotes her testimony: “If anybody was in a bad mood, like if Phil was in a bad mood, I would say, ‘Phil,’ or to anyone, ‘Do you need to go under the shirt?’ She also claimed, however, that she never asked Gist to go “under the shirt” because he thought it was “creepy.” Clearly, the jury did not believe her.

This case illustrates two important points:
  1. Harassment is harassment, whether its a male-on-female, or female-on-male. As long as the harassment is “because of sex,” it’s illegal. Employers that ignore a female harassing a male employee, or don’t take it seriously because “men can handle it,” do so at their own risk. 
  2. When complaining of harassment, it can be enough for an employee to complain to the manager/harasser. In this case, one of the employer’s chief defenses is that Gist never complained to management. Gist admitted that he did not complain because he feared retaliation, but that he did tell Matranga that her behavior made him uncomfortable and for her to stop. The court found that sufficient. As Eric Meyer recently pointed out on his Employer Handbook blog, an employee whose only complaint to management about harassment is to the harasser himself (or herself) may be enough to satisfy the employee’s required internal complaint.  If complaining to the harasser is sufficient, employers need to be extra vigilant in spotting harassment, and stepping in each time something seems amiss in the workplace, with or without the receipt of a complaint. 

Tuesday, March 25, 2014

Please, please, please … be careful what you email


Darren Wyss claims that his former employer, Compact Industries, demoted him on the basis of his gender and replaced him with a female. Wyss’s immediate supervisor was Tracey Brown, one of the company’s owners, and the sister of Michael Brown, another owner. After Wyss’s demotion, Michael emailed his sister, “You demoted Darren without telling me? … Darren is a good worker, too bad he’s male.”

Based on that email, the court—in Wyss v. Compact Indus. (S.D. Ohio 3/12/14)—had little trouble denying the company’s motion to dismiss the sex discrimination lawsuit.
It is reasonable to infer that Michael Brown knew of his sister’s motive for demoting Wyss and was referring to that motive in this email. This plausibly suggests that the decision to demote Wyss, who was otherwise a “good worker,” was motivated by Tracey’s intent to discriminate against men. 
Nothing good comes from putting statements like “too bad he’s male” in emails, or text messages, or voice mails, or any other form of communication. Those words should never leave your lips, let alone flow forth from your fingers in anything typed. Michael Brown may have a logical, non-discriminatory explanation for his statement … or at least he better before he gives his deposition. Even with an explanation, however, his misstep makes his company’s case that much more difficult. Do your damndest to avoid the same miscue.

Monday, March 24, 2014

It's still illegal not to hire someone because they have HIV


Twenty years ago, Tom Hanks won the Best Actor Oscar for his portrayal of Andrew Beckett, a man with AIDS fired by his law firm because of his condition. Last week, the EEOC announced that it has filed suit against Maxim Healthcare Services, a Pittsburgh medical staffing company, for its refusal to hire someone because he was HIV-positive.

The EEOC quotes its Philadelphia District Director, Spencer H. Lewis, Jr., “HIV status does not categorically preclude individuals from working in the health care field. Refusing to hire someone because he is living with HIV is not only shameful, it is a blatant violation of federal law.”

He’s absolutely correct. The ADA protects HIV as a disability. It’s illegal to refuse to hire someone because of disability. Therefore, if the EEOC can connect the dots, this employer is going to have issues. Don’t make the same mistake. Hire blind. Don’t disqualify someone purely because of a medical condition unless that medical condition prevents that person from performing an essential function of the job that a reasonable accommodate cannot cure.


Friday, March 21, 2014

WIRTW #312 (the “overtime” edition)


Earlier this week, I reported on the White House call for the Department of Labor to “fix” the overtime regulations for exempt employees. Here’s what some of my fellow blawgers had to say on this issue:
Here’s the rest of what I read this week:

Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations

Thursday, March 20, 2014

What a slick union-avoidance campaign looks like


If you’re a $72 billion company that happens to be staunchly anti-union, and money is no object in the education of your employees about how and why the cons of a labor union will undermine the pros of your company and its culture, this is what you get.

Gawker has published Target’s 14-minute employee training video, entitled, “Think Hard: Protect Your Signature.” It espouses the benefits of Target’s open-door and other HR policies, while warning employees about the risks of signing a union authorization card. The video is worth your time (but watch soon, before the inevitable cease-and-desist).

You, however, don’t need billions of dollars of revenue to craft a slick, YouTube-able union avoidance message. You can deliver the same themes in a conference room, with someone (like your friendly neighborhood labor lawyer) talking to your workers. For example, take a look at my post from earlier this year, A Lesson on Union Avoidance, which discusses Wal-Mart’s more low-tech approach, and how you can incorporate some of its themes in your communications to your employees.

The point, however, regardless of the delivery you choose, is to have a message to deliver. It’s part of what I call the TEAM approach to union avoidance:

     Train supervisors
     Educate employees
     Accessibility
     Modernize policies

Understanding that union avoidance starts as soon as an employee walks in your door about applying for a job, and not as soon as a labor union approaches your employees about signing authorization cards, is the first step in honing the right strategy that will keep your company union free.

Wednesday, March 19, 2014

Lactation at work requires reasonableness on both sides


Photo by Joelk75, via Flickr, cc
Both of my children were formula-fed. It wasn’t for lack of lactation effort. We (or, more accurately, she) tried to feed each naturally. My daughter’s birth followed 72 hours of awful labor, from which we were not sure my wife was going to make it (that’s a story for another day), and my son just did not want to eat. So for reasons that made perfect sense to us, we fed both exclusively by formula. The “lactation specialists” at the hospitals were not happy with us, and they let us know all about it. What they failed to do, however, was talk to us. It was a one-sided conversation, which failed.

In Ames v. Nationwide Mutual Ins. (8th Cir. 3/13/14), Angela Ames claimed that Nationwide discriminated against her because of her sex and pregnancy by not providing her access to a room in which to lactate. We know that lactation discrimination equates to pregnancy discrimination, and yet, in Ames, Nationwide won. Why?

Nationwide won because it had a lactation policy that provided employees reasonable access to a private room to express milk, and because Ames refused to even consider an accommodation when a room was temporarily unavailable.

Nationwide’s lactation policy allowed employees to gain badge access to its lactation rooms after completing certain paperwork that required three days processing. Even though Ames had not completed the required paperwork, the company nurse requested for her immediate access to a lactation room. While the company was processing the request, the nurse suggested that Ames use one of the company’s wellness room, which would become available in 15 or 20 minutes. In tears, Ames quit her job and sued.

The court explained its reasoning for affirming the trial court’s dismissal of Ames’s sex and pregnancy claims:
Ames was denied immediate access to a lactation room only because she had not completed the paperwork to gain badge access. Every nursing mother was required to complete the same paperwork and was subjected to the same three-day waiting period. Further, Hallberg [the nurse] tried to accommodate Ames by allowing her to use a wellness room as soon as it was available and by requesting that Ames receive expedited access to the lactation rooms.… That Nationwide’s policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.
The moral of this story is that evidence of open conversations with your employees about accommodations wins lawsuits. Nationwide won because it tried to work with Ames to find a temporary solution to her problem. Ames lost because she refused to be reasonable under the circumstances. Conflict requires a give-and-take, not a give-and-give. As long as an employer can show equal enforcement of policies, coupled with an effort to work with an employee, most lawsuits will resolve in the employer’s favor. The lactation folks at the hospitals refused to work with us, and they lost their battle. Nationwide tried to work with Ames, and, because she refused, it won their lawsuit. Let this case be a lesson to you, not only in dealing with the unique needs of lactating employees, but in resolving all conflict within the workplace.

Tuesday, March 18, 2014

Examining the low standard for adverse actions in retaliation claims


Mark Laster worked as a Public Safety Officer/Emergency Officer for the Kalamazoo Department of Public Safety for more than 23 years. After complaining to his superiors that the department was treating him differently because of his race, he alleged that he was denied training opportunities and privileges, singled out for violating at least two department policies that were selectively enforced against him, and disciplined more harshly than his peers for identical violations. 

The district court, however, dismissed Laster’s Title VII retaliation claim, concluding that none of the challenged actions were materially adverse sufficient to support a claim of retaliation. 

The 6th Circuit disagreed. Laster v. City of Kalamazoo (3/13/14) hi-lights the low standard for establishing an “adverse action” to support a retaliation claim:
Plaintiff’s burden of establishing a materially adverse employment action is “less onerous in the retaliation context than in the anti-discrimination context.” … “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” … “This more liberal definition permits actions not materially adverse for purposes of an anti-discrimination claim to qualify as such in the retaliation context.”
Thus, the 6th Circuit concluded that the trial court had erred by dismissing Laster’s retaliation claim:
Facing heightened scrutiny, receiving frequent reprimands for breaking selectively enforced policies, being disciplined more harshly than similarly situated peers, and forced to attend a pre-determination hearing based on unfounded allegations of wrongdoing might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. There is a genuine issue of fact regarding whether or not Plaintiff was subject to materially adverse action, and whether Plaintiff’s protected activity was the cause of such action.
By way of contrast, the 6th Circuit also concluded that the same set of facts could not legally support Laster’s constructive discharge claim under Title VII, because of the higher “adverse action” standard under a Title VII disparate treatment claim.

What does all this legal jargon mean from a practical standpoint? It means that when an employee complains about discrimination, or otherwise engages in protected conduct, you must treat that employee with kid gloves. Any action you take against that employee, which one could view as reasonably dissuading any employees from engaging in other protected conduct, will likely be “adverse” under Title VII’s anti-retaliation protections.

Employees who complain aren’t bulletproof, and you can still discipline or terminate a worthy employee, even on the heals of complaint about discrimination or other protected conduct. You must, however, tread very carefully, and make sure that all your i’s are dotted and t’s are crossed, because even the slightest misstep could ring the retaliation bell.