Wednesday, March 18, 2015

BREAKING: NLRB Office of General Counsel issues report on employer rules


Today, the NLRB Office of General Counsel issued its report on employer handbook rules under section 7 of the NLRA. It’s a meaty 30-page report that will take some time to digest. I’ll have my thoughts and analysis early next week.

In the meantime, you can download the report here:  http://apps.nlrb.gov/link/document.aspx/09031d4581b37135.

OSHA and pro sports—are concussions the NFL’s black lung?


San Francisco line backer Chris Borland rocked the sports world yesterday by announcing his retirement from pro football at the age of 24 after playing only one NFL season. His reason: concerns about the long-term impact of football-related head trauma.

The news comes even as the NFL has implemented league-wide rules in an attempt to minimize head injuries. And, those rules seem to be working. During the 2014 season, the rate of concussion fell 25 percent as compared to the 2013 season, and are down 36 percent since 2012. Yet, NFL players still suffer 0.43 concussions per game. And, while the rate of concussions has fallen, the rate of injuries overall continues to rise, up 17 percent from 2013 to 2014, with 265 players placed on injured reserve during the 2014 regular season. This means that during the NFL’s regular season, more than one player per game suffered a season-ending injury.

Think about those numbers? If you ran a manufacturing plant, would you be content with a “Days Without Injury” calendar that was forever set on “zero?” And, more to the point, wouldn’t you expect OSHA eventually to take interest in your extraordinarily unsafe workplace?

All the way back in 2008, OSHA opined that it has the jurisdiction to regulate professional sports if the athletes are employees. There is no doubt that NFL players, protected by a labor union and parties to a collective bargaining agreement with the NFL, are employees, subject to OSHA’s regulatory jurisdiction.

OHSA lacks a standard on pro sports, but it does have its general duty clause. It provides, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA used this general duty clause to cite Sea World of Florida following  a trainer’s death from a killer-whale attack. If the general duty clause can reach the entertainment industry, why can’t it also reach professional sports?

While OSHA likely can reach pro sports, the bigger question is will it? On its own accord, history shows that the answer is no. But, what if the NFLPA believes that the NFL isn’t doing all it could to reduce the risk of head injuries and files a complaint with OSHA? What then? Or, what if, god forbid, a player dies on the field during a game? Surely, OSHA would then investigate. For years, the government and the coal industry ignored the risk of black lung disease, even as more and more miners fell ill. The NFL has the power to regulate head injuries. It better be sure it is doing everything it can, or it is taking a huge risk that OSHA will step in and regulate in the league’s place.

Tuesday, March 17, 2015

When loose lips sink defense ships


“So, what is is, your job or your daughter?” That one question cost an employer summary judgment in its employee’s associational disability discrimination case, in Manon v. 878 Education, LLC (S.D.N.Y. 3/4/15) [pdf].

The employee in question, a school receptionist, had attendance issues relative to her care for her infant with Reactive Airway Disease. During her 132 days of work, she arrived late 27 times, left early 54 times, and was absent another 17 times, batting .258—passable for a second baseman, but well below the employment Mendoza Line. Nevertheless, with the exception of one verbal tardiness warning, her personnel file was devoid of any documentation of attendance issues.

When Manon returned to work following a two-day absence to care for her daughter, who had been hospitalized with breathing issues, her supervisor told her that he was letting her go. The reason? “How can you guarantee me that two weeks from now your daughter is not going to be sick again? …So, what is it, your job or your daughter?”

Based on that statement, the court denied the employer’s motion for summary judgment, leaving the employer two options to resolve the case—a settlement or a risky jury trial.

It goes without saying that discrimination is wrong. Maybe the lesson here is that if you are ignorant enough to fire someone because of their caregiving needs at home, maybe it is asking too much to expect you to know enough not to express that intent out loud.

Monday, March 16, 2015

Why your control employees must care about employment laws


Last week I was asked if managers and supervisors have any liability for their own acts of discrimination or other unlawful activities. Like most things in the law, the answer is, “It depends” on the law about which you are concerned.

If it’s wage and hour advice, for example, then the Fair Labor Standards Act provides for individual liability for those who exercise significant control over the company’s operations. Some courts apply the same rationale to violations of the FMLA, although individual liability under that statute is far from a settled issue. The 3rd, 5th, and 8th Circuits have all found that there can be individual liability for FMLA violations, while the 6th (which covers Ohio) and 11th Circuits have gone the other way.

There are also potential common law claims under states law (e.g., intentional infliction of emotional distress) that, while hard to establish, create yet another avenue of individual liability. 

If it’s discrimination liability, there is no issue for the individuals under since Title VII and the other federal employment discrimination laws, none of which provide for any individual liability. 

Here is the part, however, to which Ohio employers must pay attention. Under Ohio’s employment discrimination statute, managers and supervisors can be held individually liable for their own acts of discrimination. So, an employee can not only sue your company, but also the individual who made the termination decision, the HR manager who dropped the harassment-investigation ball, or the supervisor who failed to engage the disabled employee in the interactive process. 

I’ve long argued that Ohio needs to change its employment discrimination statute to eliminate individual liability and bring our state law in line which its federal counterpart and the laws of nearly every other state. Yet, as long as this is the law of our state, these liabilities need to be central part of your company’s EEO and anti-harassment training, so that your managers and supervisors understand their own personal risk if they don’t understand their EEO obligations.

Friday, March 13, 2015

WIRTW #359 (the “think outside the box” edition)


Last night my family and I went out to dinner. The following is Donovan’s (age 6) solution of the kids’ menu word search.

Think outside the box

His creative thinking should serve him well in life.

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, March 12, 2015

When the government comes knocking, don’t forget not to retaliate


Last week, I wrote about what to do when OSHA comes knocking. One issue I did not address is the potential for retaliation against employees who provide information to, or otherwise cooperate with, the government.

Thankfully, the Department of Labor, on its own blog, recently provided a not-so-subtle reminder:

Employee cooperation and candor are crucial to these efforts. Just as important, employees who give testimony are protected … from retaliation or discrimination of any kind on account of their cooperation.

Whether it’s the EEOC, the DOL (Wage and Hour or OSHA), or the NLRB, employees not only have the right to file complaints or charges, but they also have the right to provide information to the investigating agency or otherwise cooperate in the investigation. For example, if OSHA is coming into your business, the inspector will almost certainly want to interview some of your employees. If they are non-management employees, you have no right to participate in or observe the interview.

It is critical that both before and after the investigation you communicate to your managers and supervisors that retaliation will not be tolerated. It’s also a good idea to communicate the same to your employees. Having, and documenting, this communication will be your best friend in the event that you have to take a legitimate adverse action against an employee on the heels of his or her participation in a government investigation.

Wednesday, March 11, 2015

Company expands leave benefits for working mom, but what about the dads?!


The Washington Post’s On Leadership blog reports that global telecomm company Vodafone is establishing a new global maternity leave policy for all 30 of its operating companies: 16 weeks of paid maternity leave, plus a 30-hour work week with no reduction in pay for the first six months after retuning from maternity leave.

This policy is very generous, and, for its American operations, is a big step in the right direction towards aligning American maternity leave policies with those around the world (something on government has been unwilling, or unable, to accomplish). However, in rolling out this policy, Vodafone should not forget about the dads. We want flexibility too. A policy that offers parental leave, or reduced work schedules, other family-related benefits to women but not to men violates Title VII on its face.

Gender-neutral policies (those that extend the same benefits to moms and dads) are not safe from legal scrutiny. These policies must be neutral in their drafting and their application. An employer cannot overtly or subversively punish a dad who avails himself of such a benefit out of some stereotyped notion that family issues are the woman’s responsibility. Sexual stereotyping is illegal sex discrimination under Title VII.

The bottom line—moms and dads deserve to have careers and families. Balancing the two is hard enough without employers piling on.

For more on this important issue, I cannot more highly recommend reading An Apology to Dads Working, Too?, on Rob Schwartz’s Dad Working blog.

Tuesday, March 10, 2015

#SCOTUS ambushes employers on agency rulemaking


Yesterday, the U.S. Supreme Court unanimously held that the Department of Labor’s Wage and Hour Division had the authority to alter its prior interpretation of the FLSA’s administrative exemption and exclude mortgage-loan officers from its coverage. The decision—Perez v. Mortgage Bankers Assn. [pdf]—is an interesting read if you are into administrative law, agency rulemaking, and the difference between “legislative rules,” which an agency only can issue through formal notice-and-comment rulemaking, and “interpretative rules,” which do not carry the force and effect of law and which an agency can adopt on a whim.

The Supreme Court could have used the opportunity presented by Perez v. Mortgage Bankers Assn. to rein in federal agencies that are emboldened with power. It did not take that bait, even though Justice Scalia, who concurred in the result, had some harsh words for federal agencies that legislate instead of regulate:
Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment.
This issue is of critical importance, considering the NLRB’s “ambush election” rules, which take effect on April 14. These rules will:
  • Require that most union representation elections be held 10 – 21 days after a petition has been filed, robbing employers of the opportunity to deliver their message to employees.
  • Defer disputes over voter eligibility until after the election.
  • Expedite pre-election hearings.
  • Mandate that employers provide more expensive employee contact information.
If federal courts must show broad deference to administrative rulemaking, as Perez v. Mortgage Bankers Assn. suggests, employers do not stand much of a chance to block these “ambush election” rules, even as lawsuits are filed and legislation pushed.

If these ambush rules are a fait accompli, what can employers do to minimize the risk of being on the losing end of a union organizing campaign? I advocate the TEAM approach to union avoidance.

          Train supervisors
          Educate employees
          Affirm the open door
          Modernize policies


1. Train Supervisors. If a union is organizing, supervisors are likely to be the first people to know. They will also be the people that rank-and-file employees will come to with questions or concerns. Thus, supervisors need to know how to report, monitor, and legally respond to union activity.


2. Educate Employees. Employees should not be told that the company is anti-union, but why it is anti-union – competitive wages and benefits; positive communication between management and employees; history of peaceful employee/management relations; management’s openness to listen to employees and handle their concerns without an intermediary; and an unwillingness to permit a third-party to tell the company and employees how to do their jobs.


3. Affirm the open door. Management should routinely round its employees to learn what is happening and what they are thinking. Management should walk the floor on a daily basis. It should also hold regular meetings with employees, whether in small sessions with HR or large town hall-style meeting.


4. Modernize Policies. In an ideal world, employee handbooks and other corporate policies should be reviewed and updated annually. I’ve yet to come across a company that does so this frequently. These ambush election rules are the perfect excuse to take a good, hard look at current policies. Do you have a written statement on unionization? An open door policy? An issue resolution procedure? Peer review? An employee bulletin board? An electronic communications policy? Most importantly, do you have a no solicitation policy? It is the single most important policy to help fight labor unions.

Because employers will no longer have the opportunity to run an meaningful campaign after a union files its representation petition, it is essential that employers address these issues proactively before a union talks to even one of your employees.

To learn how to deploy this critical strategy in your workplace, contact one of Meyers Roman’s labor and employment attorneys.








Monday, March 9, 2015

Is your company ready for WYOD?


At 1 pm today, Apple will formally unveil its Watch to the public. While other companies have launched smartwatches, because it’s Apple, today’s launch of the Apple Watch will officially herald the beginning of the era of wearables.

If the era of wearables is upon us, it means that as soon as your first employee wears a smartwatch to work, your HR, legal, and IT departments have a whole host of new issues with which to deal.

Better stated, the issues aren’t new, but their application to an evolving technology is.

If your organization already has a BYOD (Bring Your Own Device) policy, then you are well ahead of the game. You will, however, have to adapt that policy to account for WYOD (Wear Your Own Device). All you’ll have to do is extend your BYOD to expressly cover wearables. These devices will bring email, text messages, financial information, and health data to a smaller, even more portable form. And, the more avenues your employees have to access your network and data, the more ingresses hackers have to steal information and do other bad things. In other words, you need to understand wearables, and account for them in your policies, because your employees aren’t going to wait for an official green light to start using them.

If you don’t have a BYOD policy, what are you waiting for? These issues aren’t going away. What should you be considering? Here is a good starting point.

Friday, March 6, 2015

WIRTW #358 (the “appreciation” edition)


o your employees feel appreciated? Today is Employee Appreciation Day. However, if you limit your appreciation efforts to 0.38% of a year’s working days, I can flat-out guarantee that your employees do not feel appreciated (even on their “special” day). Employee appreciation needs to be a year-round effort, not a one-off to-do to check off your corporate calendar.

Here are some thoughts, from the archives, to make employee appreciation part of your corporate culture.

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

Thursday, March 5, 2015

Some harassment shouldn't be in the eye of the beholder


A hostile work environment is hostile for one of two reasons—the alleged misconduct is either severe (overtly offensive), or pervasive (repeatedly offensive). The more severe the misconduct is, the less pervasive it has to be.

In this context, consider the following from Satterwhite v. City of Houston [pdf], in which the 5th Circuit affirmed the dismissal an employee’s retaliation claim:

Satterwhite asserts that he engaged in two distinct protected activities: (1) making an oral report to human resources that Singh used the phrase “Heil Hitler” in a meeting, and (2) answering questions in connection with the OIG’s investigation of the “Heil Hitler” incident. While Satterwhite’s actions could qualify as opposing …, for his actions to be protected activities Satterwhite must also have had a reasonable belief that Singh’s comment created a hostile work environment under Title VII.

No reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII. The Supreme Court has made clear that a court determines whether a work environment is hostile “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Furthermore, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII. We have accordingly rejected numerous Title VII claims based on isolated incidents of non-extreme conduct as insufficient as a matter of law.

Thus, in Texas, Mississippi, and Louisiana, “Heil Hitler”  is “non-extreme conduct” (insert Southern joke here).

Two points to make.

  1. Some harassment shouldn’t be in the eye of the beholder. (Warning, offensive language ahead). Nazi jokes/comments should be sufficiently severe to raise the specter of Title VII’s protections against religions harassment. Similarly, utterances of overtly offensive terms like “nigger,” “kike,” or “cunt” should, in nearly all cases, suffice to state a claim under Title VII. There is no excuse for this stuff in the workplace. Period.

  2. If you have any doubt about point number one, it’s time for some harassment and EEO training in your workplace (which is a good idea annually anyway).

Wednesday, March 4, 2015

My latest column in Workforce: Absolut Commitment to Checking


In addition to my daily blogging, I also write a monthly column in Workforce Magazine. Here’s my latest from the March edition, discussing the import of the Fair Credit Reporting Act on employment background checks—Absolut Commitment to Checking. Enjoy.

Look inside >
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Absolut Commitment to Checking

Tuesday, March 3, 2015

Transfer as reasonable accommodation?


I once worked for a law firm (that shall remain nameless) that put me in a converted utility closet for my office. It was the only associate “office” open near the partners for whom I worked. It was so cramped that I has to turn sideways to shimmy past the desk to get to my chair.

I thought of this experience yesterday as I read a story on abajournal.com about a law firm associate who is suing her employer for disability discrimination, claiming it failed to accommodate her claustrophobia. She claims that her firm, which had previously permitted her to transfer to its Philadelphia office for different reasons, discriminatorily refused to transfer her to a nearby suburban office after she complained that the 24-floor elevator ride triggered a severe claustrophobic response. The firm initially permitted her to work from home while she sought treatment, and then allegedly fired her after she refused a transfer to an office 120 miles upstate.

Let’s start with some ADA basics. An employer does not have to create a position as a reasonable accommodation for an employee. However, transfer to a vacant position is a reasonable accommodation that an employer must consider when engaging a disabled employee in the interactive process.

These rules only tell part of the story for this case. What is a “vacant” position for a law firm associate? Could she still have serviced the same clients, and worked on the same cases, from a suburban office 10 to 20 miles away? Moreover, why did the employer cease the telecommuting accommodation after only one month, and only after the employee rejected the accommodation that would have required a four-hour daily commute, or for her to move upstate? These are fact issues that the court, or, maybe, a jury will have to work out as this case proceeds.

These questions, though, illustrate the type of dialogue you need to have both internally and with your employee whenever that employee requests a reasonable accommodation. Better to hash them out internally, then in court, right?

Monday, March 2, 2015

Do you know what to do when OSHA comes knocking?


News broke over the weekend of a fatality at a local manufacturing plant. Undoubtedly, OSHA was on the scene to unravel what happened.

Injuries or fatalities aren't the only reasons OSHA might arrive at your door. It might have received a complaint from a current or former employee. It might a random investigation. You might be part of a targeted industry. Or, it could be a follow-up from a prior investigation.

Regardless, when OSHA arrives, whatever the reason, your personnel needs to know that the first call should be to your employment lawyer. Unless the investigator has a search warrant or subpoena, he or she has no right to enter your business, no matter what he or she says to bully through your door.

OSHA is not your friend. It is not there to give you an atta-boy on workplace safety. It is there to find violations and levy fines to make money for OSHA. This is not cynicism; this is fact. And once it is through your door, everything becomes fair game, no matter the reason for the investigation.

OSHA's fines range from a maximum of $7,000 for each serious violation, and a maximum of $70,000 for each willful or repeat violation. Trust me, these numbers add up quickly.

What is OSHA looking for? Here is the agency's Top 10 list, right from its website:

  1. Fall Protection
  2. Hazard Communication
  3. Scaffolding
  4. Respiratory Protection
  5. Lockout/Tagout
  6. Powered Industrial Trucks
  7. Electrical – Wiring Methods
  8. Ladders in Construction
  9. Machine Guarding
  10. Electrical – General Requirements

If you are fortunate enough not to have OSHA in your facility, use the time to conduct a top-to-bottom safety audit. Call a workplace safety expert. Call an employment lawyer. Call someone knowledgable in this area to tell you what needs to be fixed before OSHA does it for you. And, if (when?) OSHA shows up at your door, call your employment lawyer to handle the investigation, mitigate the disruption, and, as best as possible, limit damage.

 

Friday, February 27, 2015

WIRTW #357 (the “proud papa” edition)


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

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

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

 

Thursday, February 26, 2015

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


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

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

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

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

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

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

Justice Alito then offered a very practical solution:

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

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

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

Wednesday, February 25, 2015

DOL proposes expanded FMLA coverage for same-sex couples


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

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

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

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

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

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

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

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

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

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

Tuesday, February 24, 2015

Turning a mistake into an educational opportunity


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

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

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

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

Monday, February 23, 2015

4th Circuit eviscerates EEOC in background screening case


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

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

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

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

Ouch.

Friday, February 20, 2015

WIRTW #356 (the “rock hall” edition)


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

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

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

School of Rock Cleveland   The Music of Joan Jett   YouTube

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

Discrimination

Social Media & Workplace Technology

HR & Employee Relations

Wage & Hour

Labor Relations

 

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