“Faithfully” considering performance obligations in employment contracts

Ken Adams, writing at his always insightful blog, Adams on Contract Drafting, comments on the use of terms such as “faithfully” to describe an employee’s performance obligations in an employment agreement. Ken concludes that terms such as faithfully, diligently, competently, industriously, etc., are too wishy-washy to be of any practical use. Instead, he suggests that you “be as specific as possible regarding an employee’s duties”—

For lack of anything more tangible, drafters throw in faithfully and the like. But I don’t think it does any good. In a contract you might well say that the employee is obligated to perform duties specified by the CEO (or, in the case of the CEO, by the board of directors), is obligated to work full-time, and can be fired for specific transgressions. Beyond that, you face the question of whether the employee will do a good job and be successful. Unless you come up with quantifiable targets, imposing on an employee an obligation to be successful wouldn’t work. So drafters make impotent gestures in that direction—that’s where faithfully comes in.

Even though I agree with Ken, terms like “faithfully” do serve a legal significance in employment agreements. They intend to impose a heighted (or fiduciary) duty of performance upon the contracting employee. Unless a contract provides otherwise, an employee might now not owe a fiduciary duty to his or her employer. In many circumstances, employers want to ensure that they impose this obligation on managers and other higher-level employees. Thus, they use terms like “faithfully” to legally bind the employee to a heightened performance obligation.

The, problem, however, is as Ken points out. Performance obligations such as “faithfully” are too vague and subjective to be of any practical use. Sure, a court might use that word to impose a fiduciary duty, but a court could just as easily strike it for vagueness. Instead of using these indefinite terms of art that do not provide the employer or the employee any practical on-the-job guidance, employers should tie the obligations to specific performance standards. Consider the following example:

Employee shall devote all of his/her working time, attention, knowledge, and skills to Employer’s business interests and shall do so in good faith, with his/her best efforts, and to the reasonable satisfaction of the Employer.

Employee agrees to refrain from any interest, of any kind whatsoever, in any business competitive to Employer’s business. The Employee further acknowledges s/he will not engage in any form of activity that produces a “conflict of interest” with those of the Employer unless agreed to in advance and in writing. 

The Employee understands that failure to reach benchmarks or performance terms provided by the Employer may result in reassignment, demotion, or termination. Employee further understands that reaching these benchmarks or performance terms constitutes a reasonable and substantial condition of employment, but does not in any way guarantee or promise continued employment.

As for “faithfully,” I recommend we stick to cheesy soft-rock ballads.

WIRTW #340 (the “punting” edition)

The federal court that recently announced its intent to dismiss the EEOC v. CVS severance agreement case has finally issued its written opinion … and the court did not reach the key issue in the case. Instead, the court dismissed the EEOC’s lawsuit based solely on its failure to conciliate with CVS prior to filing suit. So, it’s back to the drawing board for employers hoping for some concrete guidance on the legality of myriad garden-variety severance agreement provisions, which may come from a similar lawsuit the EEOC is pursuing in Colorado. You can more on the background of this story here and here.

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

Discrimination

• An employer should never ask about disability or religion. Except when it should. —Robin Shea’s Employment & Labor Insider
• You’re More Biased Than You Think — via Fast Company
• Weight Discrimination Is Surprisingly Rare, Study Finds — via Discovery
• Age Discrimination In Finland – Suffered Most By Those … Under 30? — via Employment Discrimination Report
• EEOC and wellness programs: Looking for “just right.” — via Michigan Employment Law Connection
• Remember that a duty to accommodate may exist after childbirth — via Eric Meyer’s The Employer Handbook Blog
• The EEOC’s Litigation Scorecard For FY2014 – What Does It Mean For Employers — via EEOC Year-End Countdown
• Should ADA protections apply to pedophiles? — via ABA Journal Daily News

Social Media & Workplace Technology

• Employees Can Break Data Privacy Rules Too — via Dan Schwartz’s Connecticut Employment Law Blog
• Even If You Don't Use Social Networks, They Still Know Stuff About You — via Lifehacker
• Union access to employer’s e-mail systems: Are times a-changin’? — via Technology for HR
• Workplace Trends: The Office Telemedicine Kiosk — via Workplace Diva

HR & Employee Relations

• Is your workforce knowledgeable about Ebola … and should it be? — via Employment Law Matters
• When “The End” Is Not “The End”: Asserting Trade Secret Claims After The Execution of a Mutual Release — via Trading Secrets
• Breaking Bad: Disciplining employees for off-duty conduct — via EntertainHR
• Further Thoughts on the “CEO Dads”: Schireson and El-Erian — via Fathers, Work and Family
• Breast Cancer Awareness Month and HR — via Fistful of Talent
• What To Do When You Don't Have a Policy in Place — via ERC Insights Blog
• Bullying in the Workplace: New Laws or Stronger Employer Policies? — via Smart HR Manager

Wage & Hour

• The Secret Life of Equity Compensation at IPO — via Compensation Café
• Ignoring the FLSA: Another case of Stupid HR — via Mike Haberman’s Omega HR Solutions

Labor Relations

• NLRB General Counsel and Company Seek Detailed Financial Accounting in Beck Disclosure, NLRB Members Say No — via Matt Austin Labor Law
• NLRB Finds FedEx Drivers to be Employees–Not Independent Contractors — via Wyatt Employment Law Report
• NLRB Refines Its Test for Independent Contractor Status — via Labor Relations Update
• Cursing, fighting, and screaming could be protected under the NLRA — via HR Hero Line

Are post-work security checks compensable? #SCOTUS and Integrity Staffing Solutions v. Busk

Yesterday, the Supreme Court heard oral argument in its first employment law case of this term, Integrity Staffing Solutions v. Busk.

To wage-and-hour geeks (like me), this case presents an interesting issue under the Fair Labor Standards Act: whether the FLSA entitles hourly employees to be paid for post-shift time spent undergoing mandatory security screenings. The case was brought by two employees of a warehousing company that was having employee theft problems. To combat the issue, the company implemented mandatory (and unpaid) post-shift security checks, which included passing through metal detectors, which kept employees at the plant for up to 30 extra minutes.

FLSA, as amended by the Portal-to-Portal Act, generally precludes compensation for “preliminary” (pre-shift) and “postliminary” (post-shift) activities, unless the activities are “integral and indispensable” to an employee’s principal activities. To be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.”

In this case, the 9th Circuit held that the security screenings were “integral and indispensible” because the company required them “to prevent employee theft, a concern that stems from the nature of the employees’ work.” In so ruling, the court distinguished cases involving non-compensable pre- and post-shift screenings at airports and nuclear power plants, which did not benefit the employer because they were otherwise mandate by federal law.

In its brief, the employer argued that the screenings take place away from the work area after the workday, and did not affect their work activity of pulling product off shelves. The employer also argued that the unpaid screenings are no different than unpaid time walking from their cars, through the parking lot, and into the warehouse. Contrarily, the employees argued that the employer’s required security screenings, for which the employees had no choice, triggered a legal duty to pay.

During oral argument (transcript) the conservative wing of the Court seemed to advocate for a narrow interpretation of “principal.”

Chief Justice Roberts: But no one’s principal activity is going through security screening.  The employer doesn’t hire somebody, I need somebody to go through employee screening.  He hires them to do something else…. You’re saying everything that is related somehow to the job is principal. I would have thought principal has to do with things that are more significantly related.

Justice Alito: You wouldn’t pay anybody just to come in and go through security.

Meanwhile, the more employee-friendly Justices attempted to argue that because “inventory control” is “important” to the business, it is integral and indispensable:

I mean, what makes it Amazon? It’s a system of inventory control that betters everybody else in the business. And what’s really important to Amazon is that it knows where every toothbrush in the warehouse is. And that’s just as integral to what Amazon does and to what it requires its employees to do….

In handicapping this case, you have to keep in mind that earlier this year, this same Court, in Sandifer v. U.S. Steel, decided that the time spent putting on and taking off certain protective gear is not compensable. While Sandifer is a different case, decided under a collective bargaining agreement, I would be surprised, especially given the tenor of oral argument, if the employees walk away from Busk with a win. This case will hinge on whether the security screenings are key to the nature of the employment. I, along with what I perceive as a majority of the Court, believe that the employer has the better of this agreement. We’ll find out for sure early next year when the Court issues its opinion.

Sexual discrimination vs. sexual favoritism

The Employment Matters blog recently posted about a 10th Circuit case that upheld the dismissal of a sex discrimination case that alleged sexual favoritism as its lynchpin.

What is the difference between sexual discrimination and sexual favoritism? The former is illegal, while the latter isn’t.

In the words of one federal appellate court:

Title VII does not, however, prevent employers from favoring employees because of personal relationships. Whether the employer grants employment perks to an employee because she is a protegé, an old friend, a close relative or a love interest, that special treatment is permissible as long as it is not based on an impermissible classification.

Or, in the words of another federal court:

As the numerous cases finding that preferential treatment for a paramour does not constitute gender discrimination make clear, nothing about the favoritism … had to do with the protected characteristic of gender. Instead, the alleged favoritism was based only upon a special relationship between certain staff members and managers. All other staff members, whether male … or female…, were equally negatively affected by the purported favoritism.

This is not to say that playing sexual favorites in the office is a good idea. It’s far from it. For starters, is morale crushing for employees to believe (correctly or incorrectly) that they are being treated differently simply because they are not sleeping with or otherwise romantically attached to the boss. It also leads to office gossip and potential conflicts of interest.

Also, lots can go wrong when an office romance goes south. For example, what if, after the relationship ends, one says to the other, “I can do something to your job!”? Or, worse, the threats could be followed by extortion or blackmail.

I will not tell you that employers should forbid their employees from dating. The heart will go where it wants to go. If your employees want to date (or do more), they will, with or without a policy forbidding it. Instead, use workplace romances as an opportunity to educate your employees about your anti-harassment policies and programs.

• Train your employees about what is, and is not, appropriate workplace conduct between the sexes.
• Remind employees that the company expects professional behavior at all times, regardless of the personal relationships (past or present) between employees.
• Advise employees that unprofessional behavior is not tolerated, and will lead to discipline, up to, and including, termination,, which includes such behavior during and after romantic or sexual relationships.

Focusing on conduct (and misconduct) instead of the relationships itself provides your employees the tools to avoid the potential problems that can arise from these relationships, which, in turn, will help any organization avoid the litigation expenses these problems can cause. And we can all agree to love that idea.

Don’t fire employees on the heels of a cancer diagnosis

You can’t escape the fact that October is Breast Cancer Awareness Month. Pink is everywhere. Women are wearing pink everything. Buildings are ablaze in pink lights. And NFL games are awash in pink arm sleeves, handkerchiefs, and end-zone paint.

So, it’s appropriate that I bring you the story of a Chicagoland woman allegedly forced off her employer’s health insurance after her breast-cancer diagnosis, and later fired for complaining about it.

 

From the Chicago Tribune:

When Harrington [the employee] learned that she had an abnormal mammogram, the suit said, Quinlan [the employer] began pressuring her to get off of the company’s group health insurance policy. Quinlan forced her off the policy the next month, according to the suit, when she was diagnosed with breast cancer and needed treatment.

Quinlan became angry with her for complaining about not being on the insurance policy, according to the suit, saying that insurance costs would be much higher with her on the policy. Quinlan then fired Harrington, the suit claims.

There is little doubt that the ADA protects cancer as a disability. While a lawsuit is nothing more than a statement of unproven facts, if there is any truth to the allegations in this lawsuit, this employer is going to have big problems.

For want of a well-placed pickle: will your termination pass the red-face test?

Have you ever refused to eat at fast food sandwich because the pickles were off? Not “off” as in omitted, or “off” as in taste, but “off” as in alignment, or, these pickles are arranged in a triangle and not in a square on my patty?

If you answered “yes”to this question, you’re lying, because no one in the history of the world has ever said or thought that their McPickles are mis-aligned.

Ask yourself, then, why an employer would try to justify an employee’s discipline on the grounds of “poor pickle placement.”

Last week I discussed EYM King of Michigan, in which an NLRB Administrative Law Judge invalided a fast-food restaurant’s no-loitering policy. In that same case, the same ALJ also considered the suspension and termination of an employee who worked part-time for a labor union and had previously struck other local fast food establishments over raising the minimum wage. On September 20, 2013, that employee, Claudette Wilson, was sent home early without pay for “not placing pickles on sandwiches in a perfect square as she was supposed to.” The day prior, she had met with a co-worker in the parking lot to fill out a union questionnaire on wages, for which she received a written warning for violating the no-loitering policy.

The ALJ concluded that the employer’s suspension of Wilson discriminated against her for engaging in protected union activity:

Wilson admits that she did not put pickles on her sandwiches in perfect squares as she was supposed to, due to her anger over the written warning she received.  However, given Respondent’s animus towards her protected activity, as evidence by the illegal warning given toher the same day, I find that the General Counsel has made a prima facie that her discipline (being sent home early) was related to Wilson engaging in protected activity in Respondent’s parking lot the day prior.

Folks, no one in their right mind is going to believe that a fast-food worker suffered discipline for poor pickle placement. Your personnel decisions must pass the red-face test. Can you consider the decision without repelling in embarrassment? If not, it’s best to pass on the decision and live to fight another day. If you react poorly to your own decision, imagine how a judge or jury will react.

WIRTW #339 (the “iWork” edition)

What’s it like to work for the richest and most admired company in the world? Boy Genius Report writes that being an Apple employee might not be on par with being an Apple fan, in Ex-Apple managers spill dirt on what it’s like to work there, say Apple execs “are nuts.”

Do you love working long hours, spending a lot of time away from your family, and dealing with insanely demanding bosses? If so then there’s a little company in Cupertino that just might be the perfect place for you to set up shop….

“It’s a stressful job, there’s a lot of responsibility, and you always have to be on,” said Melton, who also described Apple execs as “nuts.” “I mean, it’s not that it’s not fun, it’s not that it’s not fulfilling, it’s not that you don’t get to work around all these brilliant people. The bad side effect is they’re all, like, workaholic, psychotic brilliant people.”

BGR has more, including a link to the full interview with two former Apple managers.

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

Discrimination

• EEOC files first transgender suits against private employers — via Robin Shea’s Employment & Labor Insider
• Three more courtroom defeats for EEOC — via Walter Olson’s Overlawyered
• Is Your Company’s Dress Code Discriminatory? — via In House
• A Monday Night Football lesson on workplace religious accommodations — via Eric Meyer’s The Employer Handbook Blog
• EEOC: Trolling for plaintiffs — via EmployerLINC
• Don’t Fire An Employee When She Tells You She is Pregnant — via Employment Discrimination Report
• Employers’ Hands are Tied: New Washington D.C. Law Goes Beyond Ban the Box — via employeescreenIQ Blog

Social Media & Workplace Technology

• Are Websites Places of Public Accommodation? — via HR Defense Blog
• Keeping Secrets on Social Media: Part I and Part II — via Molly DiBianca’s Delaware Employment Law Blog
• Two Courts Permit Defendants To Be Served on Facebook — via Above the Law
• Ello: The Hot New Anti-Facebook Social Network — via Technologist
• Ello vs. Facebook — via The Not-So Private Parts
• What Messaging Tool Should You Pick to Tell Off Your Boss? — via The Tim Sackett Project
• After Torching Laptop, CEO Feels the Heat of Sanctions — via Suits by Suits

HR & Employee Relations

• Your Former Employees Want a Reference, Here Is What Your Attorney Thinks About That — via Suzanne Lucas, writing at Inc.com
• It May Not Get You Arrested, but it May Not Keep You Employed — via WSJ Law Blog
• How to Deal with Bullies at Work — via Harvard Business Review
• Happy New Year! OSHA’s Revised Recordkeeping Rule — Major Implications on Employers — via Employment Law Lookout
• “No Hire” Agreements: Unlawful Collusion or Necessary Self-Protection? — via The Labor Dish
• Do Supervisors Have To Save Employees During An Emergency? — via Evil Skippy at Work
• Your Employer Wants To Indoctrinate You With Their Politics — via Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• A Reminder About the Dangers of Employee Misclassification — via Employment & the Law
• How To Decertify an FLSA Collective Action — via Minnesota Employer
• Has Wal-Mart Helped to Expand the Scope of Joint Employment? — via The Emplawyerologist
• Julia Roberts Would Not Be Impressed: Mystic Pizza Cited for Wage/Hour Violations — via Dan Schwartz’s Connecticut Employment Law Blog
• Giving an employee a piece of the action may violate the FLSA — via Mike Haberman’s Omega HR Solutions
• Off-the-Clock Security Checks — via Wage & Hour - Development & Highlights
• Leave Laws, FMLA, and the Workplace — via Blogging4Jobs

Labor Relations

• Remember that Job You Had 11 Years Ago? Well Good News! — via Phil Miles’s Lawffice Space
• NLRB Postpones Creation Of Employee Right To Use Employer E-Mail For Union Activity — via Labor Relations Today
• Steelworkers Playbook on How They Plan to Reform Labor Law — via Matt Austin Labor Law
• Labor Board Gets an F for its Treatment of A-List — via EntertainHR
• The Death of Courtesy and Civility Under the National Labor Relations Act — via Socially Aware Blog

Image by Rob Janoff (Apple) [Public domain], via Wikimedia Commons.

BREAKING NEWS: U.S. Supreme Court to take up issue of workplace religious accommodation

It’s day one for the U.S. Supreme Court’s 2014-2015 term, and the Court has already made big employment law news.

The Court has accepted the the appeal filed by the EEOC in EEOC v. Abercrombie & Fitch Stores, Inc. 

This case, which concerned whether Title VII’s religious accommodation provision required the retailer to grant an exception to its “Look Policy” for a hijab-wearing job applicant, has an interesting procedural history. The EEOC won summary judgment at the trial court. The 10th Circuit then reversed, and issued summary judgment for the employer, concluding:

The EEOC did not satisfy the second element of its prima facie case, as there is no genuine dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing her hijab stemmed from her religious beliefs and that she needed an accommodation for this (inflexible) practice.

Let’s hope for some concrete guidance from the Court on this timely and perplexing issue.

I’ll have much more to say about this case next year after the court holds oral argument. In the meantime, for more on “look policies” and religious accommodations, see my earlier thoughts:

• A Muslim walks into a store… Corporate “Look Policies” and religious discrimination
• Accommodating religions starts at home (a love story)
• Do you know? Discrimination against Muslims
• Religious accommodation versus public image
• Grooming and appearance policies continue to make headlines as fulcrum of religious discrimination lawsuits
• WIRTW #237 (the “don’t judge a book by its cover” edition)
• Halting the tide of religious-discrimination claims

Add “no loitering” to the list of potentially unlawful work rules, per the #NLRB

It’s no secret that the NLRB is waging a war against facially neutral employment policies. You can add “no loitering” rules to its list of victims.

In EYM King of Michigan, an NLRB administrative law judge considered the following policy, implemented by a Burger King franchise:

Loitering and soliciting either inside or outside on Company premises is strictly prohibited. You should arrive some minutes before your entry hour and leave the as soon as you finish your shift. Employees are not authorized to remain in the restaurant after work. If you are not working or eating in a store, your conduct may be construed as loitering. If you are off-duty and return to the store to speak with employees who are working, your conduct may be considered loitering. Former employees who return to the store to speak with employees who are working are loitering. This policy is designed to prevent the disruption of company business due to unnecessary interaction with non-working employees or non-employees. Employees who violate this policy may be subject to discipline, up to and including termination.

The ALJ concluded that this policy unlawfully restricted employees’ rights to engage in protected concerted activity because it impeded employees’ ability to gather, and, by implication, discuss wages, hours, and other terms and conditions of employment. The judge also was not persuaded by the employer’s professed “safety” concerns for its employees:

Respondent’s justification for its rules is that its restaurants are located in high-crime areas.  To give credence to such an explanation would effectively deprive millions of the lowest-paid workers in the United States of the ability to assert their Section 7 rights….

Respondent’s professed concerns regarding safety in justifying its loitering and solicitation rules are manifestly specious. The company has made no showing as to how this rule enhances safety. In this regard, it does not prohibit customers from eating food purchased at its restaurants while sitting in their cars in the restaurant parking lot. Moreover, people are just as likely to be the victims of violent crime at Respondent’s drive thru windows as anywhere else on the exterior of the restaurant.

No employment policy that could potentially impact employees’ ability to discuss work is safe from the NLRB’s scrutiny. If you have not had a labor and employment lawyer review your handbook and other policies, you are doing your business a severe disservice, and taking a huge risk, in this hyperactive regulatory environment.

EEOC wastes its scarce resources by filing lawsuits without claimants

The National Law Journal reports that Texas Roadhouse has sued the EEOC, demanding background on the agency’s prior age discrimination suit against it. The restaurant chain is suing under the Freedom of Information Act, seeking the genesis of the lawsuit, which it claims the EEOC filed without first receiving a charge of discrimination.

According the the NLJ, “By law, the EEOC doesn’t have to wait for someone to come forward with a discrimination complaint. It can act on its own by filing a commissioner’s charge, or initiating a directed investigation….  In part, the agency relies on statistical evidence culled from reports that all employers with 100 or more workers (and federal contractors with 50 or more) must file annually with the agency, showing the sex and race or ethnicity of workers by job category.”

According to the FOIA complaint, “The very agency that has attempted to enforce the law against discrimination—by launching an unprovoked attack against Texas Roadhouse, then waging a media campaign declaring Texas Roadhouse guilty before a single day, indeed, a single minute, in court—is defying the law applicable to it. This cannot stand in a society governed by fundamental principles of fairness, due process, and the rule of law.”

Rhetoric aside, I question whether scouring EEO-1s for employers who appear, based on demographics alone, to discriminate, is the best use of the EEOC’s limited resources. The EEOC can do a lot of good to further civil rights opinion this country (see EEOC makes history by filing its first ever transgender-discrimination lawsuits). Cases such as this one, however, cause me to question the EEOC’s motives, and cause employers to lose confidence in what should be a worthy agency. 

When the same actor hires and fires, discrimination is unlikely

It seems to be common sense that if the decision maker accused of a discriminatory adverse action is also the individual responsible for earlier hiring that same person, it is unlikely that a discriminatory reason motivated the latter decision. After all, if I discriminate against people of a certain race (or gender, age, religion, etc.), why would I hire them in the first place? Wouldn’t I just not hire them to keep them out of my organization?

Courts refer to this as the “same-actor inference” — inferring a lack of discrimination from the fact that the same individual both hired and fired the employee.

A recent decision from the Southern District of Ohio applied this inference in a case in which a fast-food manager claimed discrimination after the “same actor” hired him, and, shortly thereafter, fired him:

Even Plaintiff’s theory of this case does not suggest race discrimination: it defies logic that a Caucasian manager would hire him in an attempt to replace a minority manager and then “turn the tables” four months later and fire him for being Caucasian.

This is not to say that the same actor can never discriminate. After all, Chevy Chase hired Richard Pryor after lobbing the worst kind of racial bombs across the interview desk. Indeed, in the 6th Circuit, this “same actor” inference is insufficient, in and of itself, to entitle an employer to summary judgment. But, if you are faced with a case in which the same actor is accused of firing after hiring, absent other compelling evidence of discriminatory intent, you will have a great defense to the discrimination claim.

What does an ADA interactive process not look like?

Upon attempting to return from a medical leave of absence, an employee requests the following accommodations: an ergonomic chair, adjusted lighting in her office, and a part-time schedule for the next eight days. Instead of providing the accommodations, or even discussing their availability, the employer refuses to permit the employee to return to work, instead telling her not to return until it was with no restrictions or accommodations. The company later fires the employee (seven days after she filed an EEOC charge challenging the failure-to-accommodate), telling her that she failed to engage in the interactive process.

These are the facts of the latest ADA lawsuit filed by the EEOC. If the facts as the EEOC alleges are true, this case seems like a slam dunk for the agency.

Once an employer becomes aware of the need for a reasonable accommodation, the ADA obligates it to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. That process requires communication and good-faith exploration of possible accommodations. An employer cannot dismiss, without discussion, accommodations proposed or requested by the employee. The employee might not be entitled to a requested or preferred accommodation, but he or she is entitled to a good-faith exploration of their possibility.

In this case, it appears that the employer did the exact opposite of what the ADA requires of it, and, to make matters worse, blamed the employee for the breakdown of the interactive process when later firing her on the heals of her EEOC charge. 

This employer is going to learn an expensive lesson about the reasonable accommodation process. Perhaps you can learn something from its apparent mistakes. 

WIRTW #338 (the “can you find me now” edition)

According to a recent Harris Poll, men are nearly twice as likely to lose their smartphones than women (46% to 27%). Moreover, the younger you are, the more likely you are to lose your phone. For employees age 18-34, 60% of men report losing their smartphones, as compared to only 30% of women.

My own house is the exception, not the rule. Neither my wife nor I fall into the 18-34 demo (sorry, honey), and she is much more likely to be one saying, “Have you seen my phone,” as we’re trying to leave the house.

So, readers, what say you? Who loses their phones more, men or women?

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

Discrimination

• Congress Criticizes the EEOC’s Policy on Background Checks — via employeescreenIQ Blog
• The EEOC has been a busy bee this week. (It stings!) — via Robin Shea’s Employment & Labor Insider
• EEOC Is Targeting Pregnancy Discrimination: Three New Cases — via Employment Discrimination Report
• Does Telling Fat Jokes and Farting At Co-Workers Constitute Sexual Harassment? — via Minnesota Employer
• Just because infertility is a disability doesn’t mean the treatment for it is protected by the ADA — via Understanding the ADA
• Court rules interactive process should have been triggered by a couple of stray comments — via EmployerLINC
• Court Dismisses EEOC Lawsuit Challenging CVS Separation Agreement — via Dan Schwartz’s Connecticut Employment Law Blog
• It’s Okay to Ask An Employer About Their Religious Views — via Lifehacker
• Does Your Company Prohibit Transgender Discrimination? — via In House

Social Media & Workplace Technology

• Your future employees are texting fools. Are you prepared? — via Blogging4Jobs
• Only 30% Of Employees Trust Employers To Manage BYOD — via Workplace Diva
• 25 Acts of Social Media Cruelty — via Inc.com
• Debating the Mechanics of Handling Social Media — via You’re the Boss Blog
• 3 Technology and Social Media Policies To Consider E— via RC Insights Blog
• Is Your Social Media Presence a Blessing or Curse? — via Bulls Eye Recruiting
• Social media & HR: Know your state privacy law — via Business Management Daily

HR & Employee Relations

• Can We DO That?! Personal Lives in the Not-So-Private Eye — via Next Blog
• Is It in My Head? The Who, Hearing Loss, and Headphones in the Workplace — via Workforce
• 6 questions for companies changing a dress code — via Evil HR Lady, Suzanne Lucas
• Adrian Peterson Situation Spotlights Dilemma Employers Face Frequently — via Texas Employment Law Update
• My Co-Worker Shoplifts — via Evil Skippy at Work
• #Workflex Is More Than Telecommuting — via Families and Work Institute Blog

Wage & Hour

• Using Independent Contractors just got riskier! — via Mike Haberman’s Omega HR Solutions
• Court Rules Private Settlement Of FLSA Claims May Be Possible — via The Employment Brief
• Attorney Overtime Lawsuit Dismissed Under FLSA Professional Exemption — via Wage & Hour - Development & Highlights
• Fifth Circuit: Franchisor Not An "Employer" Under FLSA — via Employer Advocate

FMLA

• Employer Compliance with the Family and Medical Leave Act: Recent Study — via Workplace Prof Blog
• An orgasm on a treadmill explodes an employee’s FMLA claim — via Eric Meyer’s The Employer Handbook Blog
• Are You a Co-Employer? FMLA Joint Employer Liability Can Be Deadly — via Jeff Nowak’s FMLA Insights
• Regional Air Carriers are “Joint Employers” Under FMLA — via Employment Brief
• FMLA Lessons From Wal-Mart: Just What the Doctor (and Court) Ordered — via The Emplawyerologist

From the archives: Time off for religious holidays

Since today is both Rosh Hashanah and a work day, I though it appropriate to go deep into the archives, all the way to (yikes) 2008, to reprint a post discussing an employer’s obligations to an employee who asks for a day off to observe a religious holiday.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.

In other words, permitting Jewish employees a day off for Rosh Hashanah may impose an undue hardship, depending on the nature of the work performed, the employee’s duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.

In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the High Holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical reasons.

Legalities aside, however, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

EEOC should do as it does, not as it says

Last June, the EEOC sued BMW, claiming that the company’s policy of automatically disqualifying from employment anyone with certain felony convictions disparately impacted African-Americans. Unfortunately for the EEOC, like BMW, it also uses criminal background checks to screen applicants.

BMW has filed a motion to compel (copy here, h/t: Nick Fishman, at the EmployeeScreen IQ Blog), asking the court to require the EEOC to disclose in discovery its own policy for criminal background checks in hiring. BMW argues that the information is necessary to develop defenses to the Agency’s discrimination claim:

The extent to which the EEOC excludes individuals from employment based on their criminal background assists in determining the meaning of “business necessity” because the actual practices of the EEOC, as the agency charged with administering the statutory scheme, inform the meaning of the statutes and regulations it enforces. Likewise, the similarities between the EEOC’s and BMW’s policies bear on whether the EEOC may be estopped from complaining about BMW’s use of policies and procedures that the EEOC also uses.

This argument is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:

If Plaintiff uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.

Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.

What’s good for the EEOC’s goose should be good for corporate America’s gander. The fact that the EEOC has fought so hard to keep this information away from the eyes of the companies it is suing suggests that there is fire to go along with the EEOC’s smoke. Bravo to these employers for attempting to keep the agency honest.

Is it legal to fire an employee for off-duty alcohol consumption?

We know it’s legal to fire an employee for drinking on the job, but what about an employee who drinks off the job? Can an employer legally terminate an employee who tests positive for off-the-job alcohol consumption?

29 states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities. In these states, the answer is easy—no, you cannot fire an employee for off-duty drinking, unless, of course, the employee is drunk or impaired at work, at which point all bets are off. 

Ohio, however, is not one of these states. Does this mean that in Ohio you can legally fire an employee who drinks away from work?

Recently, the EEOC took up this issue in an Informal Discussion Letter. The EEOC was asked, “Is lawful for an employer to require employees who are alcoholics or perceived to be alcoholics to permanently abstain from drinking alcohol on and off the job as a condition of continued employment?”

The employer in question, a nuclear power plant operator, imposed random, for cause, and follow-up alcohol testing of all employees, and fired any employee after a second confirmed positive alcohol test at work, regardless of where the employee consumed the alcohol. Further, the employer required employees who are alcoholics or are perceived to be alcoholics to permanently abstain from drinking, regardless of whether they have tested positive for or been under the influence of alcohol at work.

The EEOC concluded that the policy “imposed a qualification standard that would result in termination of any employee who is an alcoholic or who is perceived to be an alcoholic and who does not abstain permanently from drinking alcohol on and off the job.” Because the ADA protects alcoholism as a disability, the policy discriminates on the basis of that disability. Thus, the policy was illegal under the ADA.

Employers do not have to go as far as the employer in this case to protect safety and other legitimate interests. This employer (a nuclear power plant operator) has as great an interest as any employer in ensuring that its employees are not impaired on the job. 

Tailor you work rule to on-the-job performance. Test randomly and test for cause. If an employee tests positive, you know that employee was under the influence at work, a terminable offense. There is no need to regulate employees’ off-duty lives by requiring abstinence.

[Hat tip: Drug & Alcohol Testing Law Advisor, c/o Texas Employment Law Blog]

This is what a retaliatory waiver of EEOC rights looks like

In case you missed it last Friday, a federal judge dismissed the EEOC’s lawsuit against CVS, which had challenged as retaliatory various garden-variety provisions in the retailer’s employment separation agreement.

On that same day, the EEOC announced the filing of another lawsuit, which also challenged as retaliatory a provision in an employment document. Unlike the CVS lawsuit, however, this lawsuit likely has merit.

The EEOC alleges that a Florida restaurant franchisor operator requires, as a condition of employment, all applicants and employees to submit all employment-related claims to binding arbitration, and waive their rights to file discrimination charges with the EEOC. You can read the allegedly offending arbitration clause here.

Unlike the challenged clauses in the CVS case, this clause expressly prohibits individuals from pursuing discrimination charges with the EEOC (or its state or local counterparts). The employment discrimination laws, however, prohibit as retaliatory any effort by an employer to require employees to forsake their rights to see redress with the EEOC. Thus, in my opinion, as a management-side employment lawyer, this employer’s agreement has problems.

The proper way to draft an arbitration agreement, or other agreement that waives certain rights or remedies, is to carve out EEOC charges. You would say something like this:

Nothing in this Agreement is intended to, or shall, interfere with the employee’s rights under federal, state, or local civil rights or employment discrimination laws to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against the Employer, regardless of who filed or initiated any such complaint, charge, or proceeding.

Because this clause protects the EEOC’s right to investigate and remedy violations of, and otherwise enforce, the law, it should pass muster with the EEOC. (Of course, before you implement any such language in your agreements, you must consult with your own employment counsel).

My advice to the employer in this case is to settle with the EEOC as soon as possible on the best terms possible, and avoid the expense of a costly uphill legal battle that will be difficult to win.

BREAKING: Federal judge dismisses EEOC severance agreement lawsuit against CVS

The Chicago Tribune is reporting that U.S. District Judge John Darrah has granted CVS’s motion to dismiss a lawsuit filed by EEOC, which challenged the company’s severance agreements as overly broad and retaliatory. 

Recall that the lawsuit challenged several garden-variety terms in standard employee severance agreements, including non-disparagement, confidentiality, and a covenant not to sue (which expressly disclaimed EEOC charges).

When the EEOC filed this lawsuit earlier this year, I exclaimed that a ruling for the agency could be ruinous for employers. Kudos to this judge for recognizing the folly of the EEOC’s position.

The Tribune reports that the court granted CVS’s motion at a hearing, and said that a written opinion would follow. I’ll have full coverage of this significant rebuking of the EEOC’s extreme position as soon as the opinion publishes.

In the meantime, this is not the end of this issue. It is possible, it not probable, that the EEOC will appeal this dismissal to the 7th Circuit. Also, the EEOC has filed a similar case in at least one other court. There is always a chance that another judge will see this issue the EEOC’s way, creating a split, and a headache for employers.

[Hat tip: Ameet Sachdev]

WIRTW #337 (the “page limit” edition)

When you were in school, did you ever fudge the margins, or the font, or the line-spacing to fit your term paper within the confines of a teacher’s page limit. Let me give you lawyers reading today’s post a little practice pointer. Don’t do that when you file a brief with a court. Slate.com quotes the opinion of District Court Judge Carl Barbier, who took BP to task for playing with page limits.

BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck.

Ouch.

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

Discrimination

• Iowa Editor Fired Over “Gaystopo” Blog Post Claims He’s A Victim of Religious Discrimination — via Jim Romenesko
• Nepotism in the Workplace - is it discrimination? — via Employment Law Bits
• Ten “Reasonable Accommodations” For Employees With Disabilities — via Employment Discrimination Report
• What employers need to know about “subtle bias” before it becomes an in-your-face lawsuit — via Eric Meyer’s The Employer Handbook Blog
• What can a disabled comedian teach HR? — via Mike Haberman’s Omega HR Solutions
• You’re Damned if You Automatically Fire an Employee Who Has Cancer — via damnedif
• EEOC takes on fitness-for-duty medical releases; how to avoid the crosshairs — via Next Blog

HR & Employee Relations

• Fantasy Football’s Impact on the Workplace — via HR Defense Blog
• Some Extra Points about Fantasy Football and Your Workplace — via EntertainHR
• You Stink! How to Have Difficult Conversations with Employees — via Blogging4Jobs
• Analytics and … Employment Law? — via The Labor Dish
• Off-duty domestic violence — what’s an employer to do? — via Robin Shea’s Employment & Labor Insider
• The Good, the Bad, and the Ugly: What You Should Know About Ban the Box — via TLNT
• How Long Can You Enforce a Non-Compete Agreement For? — via Dan Schwartz’s Connecticut Employment Law Blog
• How To Protect an Employer’s Intellectual Property — via Minnesota Employer
• Fired for What!? - Judge Loses Job Over Social Media Posts — via Phil Miles’s Lawffice Space

Wage & Hour

• Wage-and-Hour Implications for Telecommuting — via Employment Essentials
• Shell Oil and Related Company Pay Over $4 Million in Overtime Back Wages Following DOL Investigation — via Texas Employment Law Blog
• Food Concession Employers Win Major (But Costly) FLSA Victory — via Employer Advocate
• Lawyers Hit Rough Patch in Unpaid Intern Class Actions— via Law.com
• Cheerleaders Win Wage Theft Lawsuit — via Overtime Lawyer Blog
• Working “Off the Clock” is Not OK — via DOL’s Work in Progress
• Can We Terminate an Employee for Working a Second Job While on FMLA Leave? — via Jeff Nowak’s FMLA Insights

Labor Relations

• NLRB goes rogue against small business — via The Hill
• NLRB reinstates free meals for striking BBQ workers — via Ross Runkel Report
• Your Next Airline Delay May Carry the Union Label — via LaborPains.org
• Protecting the Employer’s Brand During a Labor Dispute — via Vorys on Labor
• Chipotle’s Sweatshop! — via The Tim Sackett Project
• Decertification Fight At Cablevision Turns Nasty — via Labor Relations Today

The best defense to a discrimination claim is…

Wilson v. Chipotle Mexican Grille (6th Cir. 9/17/15) [pdf] is an unusual or distinct case, yet it teaches employers an important lesson about how to win a discrimination case.

Catherine Wilson, an African-American female, worked as a part-time crew member at a Cincinnati Chipotle. Her reviews listed her as a “low performer,” and her supervisors counseled her about her “attitude.” Wilson requested, and was denied, a 10-day leave of absence to go to Disney World. Because of her insistence for the time off, however, her manager took her off the schedule for those 10 days and considered her to have quit her job.

When she was fired after attempting to work after she “quit,” she sued the restaurant for race and sex discrimination.

The court had little trouble dispensing with the employer’s claim that Wilson had quit her job. Whether or not she requested time off, she returned to work the next day with the intent to work. Those actions do not demonstrate a voluntary resignation.

Regardless, the employer still won the case because Wilson could not show that she was replaced by someone outside the protected classes.

Wilson offered no evidence that Chipotle replaced her with white or male employees. To the contrary, Wilson’s part-time slot was picked up by three African-American females and one African-American male. The Clifton branch work force was 75% African American during the relevant period, and Wilson offers no evidence that this changed at the time.

So, what’s the best defense to a discrimination claim? Hire others in the same protected group. If your workplace is three-quarters black, it become very hard for a black employee to claim disparate treatment. If you replace that black, female employee with three other black females, and a black male, it’s case over.

An African-American, female employee cannot show discrimination when you replace her with another African-American female. All the more reason to maintain a diverse workforce. And, an important point to consider if you need to replace a fired employee that you think might turn around and sue.