By now, you’ve likely heard of the furor over the Confederate flag following the horrific church massacre in Charleston, South Carolina. You haven’t? Well, watch this, from Last Week Tonight with John Oliver, and then let’s talk.
Tuesday, June 23, 2015
Just because lone acts of harassment aren’t always actionable doesn’t mean you should ignore them
By now, you’ve likely heard of the furor over the Confederate flag following the horrific church massacre in Charleston, South Carolina. You haven’t? Well, watch this, from Last Week Tonight with John Oliver, and then let’s talk.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 22, 2015
What’s next for Uber after independent-contractor loss?
In March, I reported on a lawsuit filed against Uber by a class of its drivers claiming that the taxi company mis-classified them as independent contractors. Apparently, that is not the only claim pending against Uber on this very issue. Earlier this month, a California Labor Commission hearing officer concluded that Uber had mis-classified one of its drivers. Uber has appealed the ruling. Frankly, I think Uber has a pretty good argument on appeal.
Here’s the full decision [pdf].
The hearing officer relied on the following factors to conclude that Uber’s drivers are employees, not independent contractors (with my critique in the parenthetical).
- Drivers must provide Uber their personal address, banking information, and social security number. (Doesn’t a company want contact info for anyone providing services for it, and doesn’t it need other information so it can pay its contractors?)
- Drivers cannot drive for Uber without a background check. (If a background check is the standard for an employee, then we might as well get rid of independent contractors all together.)
- Drivers must register their cars with Uber, which cannot be more than 10 years old (Cannot a company set reasonable standards for its contractors?)
- Uber monitors drivers’ ratings from passengers, and terminates the relationship if the rating falls below 4.6. (Contractors are not guaranteed contracts for life; if a contractor falls below certain standards, a company always has the right to terminate the relationship.)
- Uber requires drivers to use its app to drive, and they cannot drive without using it. (How is this different than a taxi company tracking its drivers via GPS and directing routes; if anything, Uber drivers have more independence because they can turn down the fare at any time.)
- Drivers are paid a set percentage of the total cost of each ride. (Isn’t this the hallmark of an independent contractor—pay by the job, not by the hour?)
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, June 19, 2015
WIRTW #371 (the “no more pencils…” edition)
I love school. I mean, I loved school when I was a student, but now that I work, and my wife works, I really love when my kids are in school. It means that I don’t have to expend any energy thinking about how they are going to spend their days. The bus picks them up and drops them off, period. Now that school’s out, however, we have to manage sitters and camps, and getting them to and from sitters and camps. So, we’ve spent the past two weeks dropping off and picking up at camp (which, for me, is 45 minutes from work, without traffic).
How do other employees, and their employers, cope with this seasonal time-management dance? Read “School’s Out!” Means More Free Time for Kids, But None for Working Parents. Here is Help for Employers Managing the Fallout. — via Employment Law Watch
Here’s the rest of what I read this week:
Discrimination
- Rachel Dolezal (Spokane NAACP) and the Deep Circle of Self-ID in the Workplace — via The HR Capitalist, Kris Dunn
- Rachel Dolezal and the Quandary of “Perceived As” Discrimination — via Employment Discrimination Report
- “Patience” is a great G N’ R song; not a reasonable accommodation under the ADA — via Eric Meyer’s The Employer Handbook Blog
- Revisiting Reasonable Accommodation Under the ADA — Being “Effective” — via Dan Schwartz’s Connecticut Employment Law Blog
- Harassment “must-have” no. 4: The Determination — via Robin Shea’s Employment & Labor Insider
- When hiring, never consider or mention military reserve obligations — via Business Management Daily
- Older workers are a bargain — via Ross Runkel Report
- Clinton e-mail controversy highlights dangers of using personal online accounts for work — via Technology for HR
- Icing on the cake for Facebook privacy laws & the impact on your workplace — via Employment Law Worldview
- My Boss Questioned Me About Personal Texts — via Evil HR Lady, Suzanne Lucas
- Survey Reveals Social Media’s Biggest Workplace Problem — via Workplace Diva
- Workers in America have problems. Meet the technologies trying to solve them. — via Wonkblog
- Here Are The 50 Best States For Working Dads — via Workplace Diva
- Are We More Productive When We Have More Time Off? — via Harvard Business Review
- The most common—and bizarre—workplace productivity killers — via Ragan.com
- California regulators: Uber drivers are employees — via Walter Olson’s Overlawyered
- Summer Interns and The ACA — via Workplace Insights
- Is Your Company required to Pay You Overtime Compensation For After-Hours Smart-Phone Use? — via Overtime Lawyer Blog
- Surprise!! An OSHA Inspector Is At Your Door! — via The Emplawyerologist
- OSHA Compliance Officers Instructed to Collect Employer Data for Fair Pay and Safe Workplaces Executive Order — via OSHA Law Blog
- NLRB Dramatically Educates Private School on Meaning of Concerted Protected Activity — via Management Memo
- NLRB Orders Reinstatement of Undocumented Workers Terminated in 2003 — via Matt Austin Labor Law
- NLRB Unwinding Temporary Employment Model — via Labor Relations Institute
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 18, 2015
Get in the zone … the no-blacks zone
Does Title VII permit an employer to staff its stores based on the racial composition of its customers? That’s the question at the heart of EEOC v. AutoZone, currently pending in federal court in Chicago.
In the lawsuit, the EEOC alleges that the auto-parts retailer transferred African-American employees to certain stores in the Chicago area based on its conception that its Hispanic customers preferred to interact with Hispanic employees.
According to Employment Law 360 [sub. req.], AutoZone claims that the EEOC cannot prove its claim because the transferees would have suffered no loss in pay, benefits, position, or responsibilities, and therefore suffered no adverse employment action under Title VII.
Meanwhile, the EEOC claims that this brand of segregation is the exact type of discrimination Title VII is supposed to prohibit: “Structuring a workforce or work assignments by race is at the core of what Title VII was enacted to combat. Autozone’s argument boils down to the proposition that an employer is free to segregate its workforce so long as it is careful to do so through lateral transfers. Title VII is not that narrow.”
It seems to me that even if the pay, benefits, etc. were exactly the same in both stores, we abolished “separate-but-equal” 61 years ago, and Title VII should not permit an employers to Plessy v. Ferguson its workforce for any reason.
For more on customer preference as discrimination, check out the following two posts from the archives:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 17, 2015
The “duck” test for independent contractors
Earlier this week, FedEx announced that it would pay an astounding $228 million to settle claims that it had misclassified drivers as independent contractors. This news comes on the heals on the Department of Labor’s announcement of pending guidance on independent contractor status.
Meanwhile, on the same day as the FedEx settlement, the Ohio Supreme Court issued its decision in State ex rel. WFAL Construction [pdf], which decided that under the facts presented, individuals working under a construction contract were “employees” for workers’ compensation purposes.
As a technical matter, in Ohio, R.C. 4123.01(A)(1)(c) lists 20 factors to determine whether a person is an “employee” for purposes of workers’ compensation; if 10 of those criteria are met, the worker is an employee. In WFAL Construction, the workers met the following 10 criteria:
- The individuals were required to comply with instruction from either the owner or an onsite lead carpenter.
- The services provided by these workers are integrated into the regular functioning of this employer as they do all of the work.
- The named persons on the various timesheets and logs performed the work personally.
- The individuals were paid by the employer.
- Records that were available to the auditor showed that the same workers performed work repeatedly for the employer.
- The individuals were paid for the specific number of hours worked on a weekly basis.
- As the employer had a supervisor or foreman on the worksite if he was not present himself, the Committee finds that the order of work was determined by the employer.
- Given the hourly payments, the workers would not realize a profit or loss as a result of the services provided.
- The employer has the right to discharge any of these individuals.
- There is no indication that any of the individuals would incur liability if the relationship ended.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, June 16, 2015
Legal marijuana remains off-limits in the workplace
It is likely that when Ohioans go the polls this November, we will have the opportunity to vote on whether to amend our state constitution to permit for the medicinal and recreational use of marijuana. Meanwhile, Cleveland.com reports that business groups are concerned over certain language in the proposed ballot measure, which, if passed, would require employers to accommodate their employees’ use of legally prescribed marijuana for medical purposes.
This language has employers questioning whether one could interpret the proposed amendment to mandate that employers permit certain employees to show up to work high, or, worse yet, use marijuana on-the-job.
To this end, business groups have been closely watching Coates v. Dish Network [pdf], a Colorado Supreme Court case asking whether an employer must accommodate an employee’s lawful use of marijuana under that state’s laws.
Thankfully, in a unanimous opinion, the Colorado Supreme Court held that the legality of marijuana under Colorado state law does not limit the right of an employer to otherwise regulate its use or effects in the workplace.
I have yet to read an opinion which suggests that legalized marijuana requires accommodation by employers for workplace use, even for medicinal purposes. Unless and until a court reaches that absurd conclusion, assume that employees have zero rights to show up to work high, even if personal off-duty marijuana use is legal under the law of your state, and even if the use is pursuant to a valid prescription to treat a medical condition.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 15, 2015
Why don't discrimination laws protect everyone from abuse?
The Huffington Post asks the following question:
Laws Protect Certain Classes from Workplace Abuse: Why Not Everyone?
The article goes on to argue that “federal and state employment laws should be developed to protect all … from workplace bullying and companies from allegations of unfair treatment via clearly defined expectations for acceptable standards of behavior.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, June 12, 2015
WIRTW #370 (the “I’m ready for my close-up”) edition
What are you doing at 8 pm tonight? I know what I’m doing. I’ll be watching Stossel on Fox Business Network. I was in New York on Tuesday taping a segment that airs on tonight’s show. Here’s the official description of my segment:
With politicians talking about job creation, you would hope government would make it easy to hire people. But the opposite is true. There are a thousand questions you may not ask when hiring someone… “how long have you been working?” or “how tall are you?” could get you into big trouble.Pop some corn, or, if you’re out and about on a summer Friday eve, set your DVR, to get your seven-minute fix of Hyman on employment law.
Here’s the rest of what I read this week:
Discrimination
- Post-trial maneuvering in a discrimination verdict — via Walter Olson’s Overlawyered
- “Must-haves” for your harassment investigation — via Robin Shea’s Employment & Labor Insider
- SCOTUS ruling on religious garb puts employers in a double bind — via HR Café
- Your employee has a fragrance allergy. What does the ADA require you to do? — via Eric Meyer’s The Employer Handbook Blog
- State of Ohio Jumps in and “Bans the Box” For All Civil Service Jobs — via TLNT
- Keep God in Your Heart-and Off Your LinkedIn Profile — via Suzanne Lucas at Inc.com
- Zoo employee fired over “racist” social-media post — via wpxi.com
- OSHA and Workplace Violence — via The Emplawyerologist
- MOVE Act Introduced; Non-Compete Agreements Would Be Limited, if Passed — via Dan Schwartz’s Connecticut Employment Law Blog
- Enforcing a Noncompete Agreement Takes More Than Bluffing — via Michigan Employment Law Advisor
- Men Are Struggling With Work-Family Balance, Too — via Huffington Post
- Planning Maternity or Paternity Leave: A Professional’s Guide — via Harvard Business Review
- Online Background Check Disclosure Form Did Not Violate the FCRA — via Laconic Law Blog
- Employee Resigns: Walk Them Out the Door Or Let Them Work a Notice? — via Fistful of Talent
- 5 New Rules for the World of Work — via Blogging4Jobs
- SCOTUS takes another class action case — via Ross Runkel Report
- HR 101: Are You Classifying Your Independent Contractors Correctly? — via TLNT
- General Release May Not Preclude FLSA Claims Says Fifth Circuit — via The Wage and Hour Litigation Blog
- Five most targeted industries for government wage and hour audits — via California Employment Law Report
- Even for Hourly Workers, Calculating the “Regular Rate” Can Be Complex — via Wage & Hour Insights
- Intern Settlement Is a Blockbuster — via Minnesota Employment Law Report
- 3d Cir. Rules on FMLA Definition of Overnight Stay — via Delaware Employment Law Blog
- Court Imposes FMLA Catch-22 — via Donna Ballman’s Screw You Guys, I’m Going Home
- How the NLRB’s “Quickie” Election Rule Is Impacting Workplace Elections — via TLNT
- “6th Circuit says Michigan tribe subject to federal labor laws” — via How Appealing
- English-Only Rules – A New Unfair Labor Practice — via Employment Essentials
- Hey NLRB: WTF? That Means “Why The Foolishness?” What Did You Think it Meant? — via The Employment Brief
- Why labor groups genuinely believe they can unionize McDonald’s one day — via Wonkblog
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 11, 2015
Beware the email chain of fools
A software engineer rejected for a job by GoDaddy is suing the company for discrimination. Why does he believe that the company discriminated against him? According to USA Today, he read it in the email chain included in his otherwise vanilla rejection email.
The e-mail…, which appears to be sent from a group titled the “GoDaddy Recruiting Team,” begins with a tame form letter, explaining that Connolly had not been selected for a job as a mobile IOS developer. But the note he said he saw below it in the e-mail chain packed an unusual punch.
It read, “about keith he’s great for the job in skills but he looks worse for wear do we really want an obeese (sic) christian? is that what our new image requires of us.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 10, 2015
Racist comments as protected concerted activity (really!)
Racism at work cannot be tolerated, right? So here’s a quick quiz. Assume you hear a white employee yelling the following at black co-workers:
- “Hey, did you bring enough KFC for everyone?” and
- “I smell fried chicken and watermelon!”
Runion’s “KFC” and “fried chicken and watermelon” statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.… The record evidence in this case does not establish that Runion’s statements were coercive or intimidating to the exercise of employees’ Section 7 rights, and it does not establish that the statements raised the likelihood of imminent physical confrontation.
- No employee should be subjected to this type of abuse, picket line or no picket line, and it is shameful that this type of misconduct is condoned.
- Employers should not be forced into a Hobson’s Choice between the NLRA and Title VII. Retaining the offender may save the employer from liability under the NLRA, but it won’t do the employer any favors if the victim pushes the issue under Title VII.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, June 9, 2015
DOL set to publish guidance on independent-contractor status
Later this morning, I’ll board a flight for New York City to tape a segment for John Stossel’s Fox News show, to air Friday at 8 pm on Fox Business. We’ll be discussing the over-complexity of labor and employment laws, and their over-regulation of American businesses.
I’m certain one topic to be covered is our wage-and-hour laws. Serendipitously, according to Employment Law 360 [subscription required], Department of Labor Wage and Hour Division administrator David Weil recently announced that he will shortly publish an “administrator interpretation” to clarify who qualifies as an independent contractor.
The distinction between employee and contractor continues to beguile employers, and is ripe for problems under both wage-and-hour laws (among other legal entanglements). Individuals continue to file multi-million dollar class-action lawsuits claiming mis-classification as contractors cost them years of unpaid overtime. And, courts continue to take a hard line against companies that try to skirt their legal responsibilities via these mis-classifications.
Is it too much to hope for a reasonable interpretation from administrator Weil that permits bona fide contractors to remain classified as such? He speaks of a "holistic," as opposed to "mechanical" approach, which "requires a careful consideration of the economic realities and multiple aspects of the relationship." Expect a fuzzy standard with lots of gray area, which will continue to cause employers fits. Or, in other words, expect the status quo to continue, with employers who classify all but the clearest of workers as employees taking a huge wage-and-hour gamble.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 8, 2015
Defining the three-headed associational disability claim
You likely know that the ADA protects employees from discrimination “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” But did you know that the ADA has three different theories to define this associational disability?
- Expense (the cost of insuring the associated disabled person under the employer’s health plan);
- Disability by association (a fear by the employer that the employee may contract the disability, or the employee is genetically predisposed to develop a disability that his or her relatives have); and
- Distraction (the employee is inattentive at work because of the disability of the associated person).
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, June 5, 2015
WIRTW #369 (the “see me, hear me”) edition
It’s been awhile since I’ve updated everyone on when and where you can hear me speak, and I’ve got a bunch coming up in the next few weeks. So, here you go:
- Later today, I’m presenting on managing generational issues in the workplace at the Lakeland Community College 8th Annual Small Business Symposium.
- On June 10, at 2 pm, I’m presenting a webinar on how to create a safer, OSHA-compliant workplace, for HRdirect.
- On June 16, at noon, I’m presenting a webinar on OSHA compliance and workplace safety, for the West LegalEdcenter.
- On June 17, at 1 pm, I’m part of a panel webinar on the NLRB’s new “quickie” election rules, for Strafford.
Discrimination
- Five harassment “must haves” for employers — via Robin Shea’s Employment & Labor Insider
- Caitlyn Jenner’s Unveil Forces the Discussion of Transgender at Work — via Blogging4Jobs
- Employer’s search for “devious defecator” backfires after suspects sue under genetic privacy law — via ABA Journal
- Is It OK To Ask An Older Job Candidate If She Can Handle Supervising Young People? — via Evil Skippy at Work
- New DOL rules could blacklist fed contractors — via Business Management Daily
- Allergic At Work Is Not Allergic To Work — via The Labor Dish
- This employer had a “no pregnancy in the workplace” policy. No, really. It did. — via Eric Meyer’s The Employer Handbook Blog
- Employee Stressed Out By Manager Is Not Disabled And May Be Terminated — via Employment Law Worldview
- Now you know: rent two not one units for employee lodging — via Overlawyered
- Should Companies Be Giving Fitbits To Employees? — via Workplace Diva
- How Wearable Technology Will Affect the Workplace — via Employment Intelligence
- More Bosses Expected To Track Their Staff Through Wearables In The Next 5 Years — via Forbes
- The Inbox – Orwell’s Big Brother Has An App For That — via Suits by Suits
- Aspects of Private Social Media Groups May Be Protectable Under Illinois Trade Secret Law — via Trading Secrets
- Flexibility and Job Satisfaction: Are Employers Listening? — via Next Blog
- June 1, 2015, Hazardous Communication Requirements Now In Effect — via OSHA Law Blog
- Is Your Employee’s Injury Reportable Under OSHA? — via The Emplawyerologist
- Planning Maternity or Paternity Leave: A Professional’s Guide — via Harvard Business Review
- How Fowl! Is An Employee’s Text and His Girlfriend’s Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast… — via Jeff Nowak’s FMLA Insights
- Can An Employee Assert State Law Wage Claims Based on Alleged Wrongful Tax Withholding? — via Minnesota Employer
- Department of Labor Seeks Information about Employees’ Use of Smartphones — via Wage & Hour Insights
- Survey Shows Corporate Counsel Especially Fear Class Actions: With Good Reason! — via Wage & Hour - Development & Highlights
- General Release Obtained By Defendant in Non-FLSA State Court Case Did Not Waive FLSA Claims — via Overtime Law Blog
- NLRB Issues Charge Against Ikea — via Labor Relations Today
- NLRB Ambush Election Rules Upheld by Texas Federal Court — via Hunton Employment & Labor Law Perspectives™
- Worse Than Feared … NLRB Reports First Month of Ambush Election Rules Yields More Petitions, Dramatically Quicker Elections — via Management Memo
- Federal Court affirms that federal contractors have to inform workers of unionization rights — via Mike Haberman’s Omega HR Solutions
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, June 4, 2015
Transgender rights take center stage
It’s been a big week for the rights of transgender Americans.
- Caitlyn (née Bruce) Jenner had her coming out party on the cover of Vanity Fair and become the quickest person to reach 1 million followers on Twitter, in less than four hours, besting President Obama’s record from two weeks ago.
- The EEOC published a guide addressing the rights of LGBT employees working in the federal sector [pdf], and continues to litigate cases under Title VII’s sex-discrimination prohibitions on behalf of transgender employees.
- OSHA published a statement of “best practices” for bathroom access for transgender employees [pdf], clarifying that employees should be entitled to use the bathroom of the gender with which they identify, and that no employer should require an employee to use a specific gender’s bathroom, or a segregated transgender-only bathroom facility.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, June 3, 2015
Did the 6th Circuit just guarantee jury trials in off-the-clock wage/hour cases?
One of the most difficult things to do is prove a negative. Yet, this is exactly the problem that employers face when defending wage and hour cases in which the employee alleges work performed off-the-clock. The employer says that the time clock defines the paid limits of the workday, while the employee says that s/he should be compensated for work performed outside the parameters of those clock-ins and clock-outs.
In Moran v. Al Basit LLC (6/1/15) [pdf], the 6th Circuit was faced with a simple question—does an employee need something other than his or her own testimony to establish an entitlement to unpaid compensation under the FLSA?
Sadly, the 6th Circuit ruled in the employee’s favor.
Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty-eight hours.… However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy.… It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.”This ruling is scary, and has the potential to work extortionate results on employers. If all an employee has to do to establish a jury claim in an off-the-clock case is say, “The employer’s records are wrong; I worked these approximate hours on a weekly basis,” then it will be impossible for an employer to win summary judgment in any off-the-clock case.
Employers, the cost of defending wage-and-hour cases just went up, as did the risk for businesses. Even meticulous wage-and-hour records might not save you from a foggy memory of a disgruntled ex-employee.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, June 2, 2015
#SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case
Yesterday, the United States Supreme Court ruled that an employer violates Title VII’s religious accommodation requirements if the need for an accommodation was a “motivating factor” in its decision, regardless of whether the employer had actual knowledge of the religious practice or its need to be accommodated.
The case, EEOC v. Abercrombie & Fitch Stores [pdf], is an unambiguous win for religious freedoms, while, at the same time, places an added burden on employers to make educated guesses about applicants’ and employees’ potential needs for workplace religious accommodations.
Abercrombie involved a conflict between a hijab-wearing Muslim job applicant and the employer’s “look policy.” The unusually terse seven-page opinion (of which only a little more than three was dedicated to actual legal analysis) focused on the difference between motive and knowledge in explaining its holding:
Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.…
For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.So, if knowledge is irrelevant, what is an employer to when faced with one’s potential need for a religious accommodation? More the point, isn’t an employer faced with having to make educated guesses (based on stereotypes such as how one looks or what one wears) of the need for an accommodation? Title VII is supposed to eliminate stereotypes from the workplace, not premise the need for an accommodation on their use. And that’s my biggest critique of this opinion—it forces an employer into the unenviable position of applying stereotypes to make educated guesses.
Nevertheless, employers are stuck with the Abercrombie “motivating factor” rule as the rule for religious accommodations moving forward. Thus, let me offer a simple suggestion on how to address this issue in your workplace—talk it out. Consider using the following three-pronged approached to ACE religious-accommodation issues in your workplace.
- Ask: Even if an employee comes to a job interview wearing a hijab, it’s still not advisable to flat-out ask about his or her religion. Nevertheless, if you believe an applicant’s or employee’s religion might interfere with an essential function of the job, explain the essential functions and ask if the employee needs an accommodation.
- Communicate: If the individual needs an accommodation, engage in the interactive process. Have a conversation with the applicant or employee. Explain your neutral policy for which an exception will have to be made. Talk through possible accommodations, and decide which accommodation, if any, is appropriate for your business and for the individual.
- Educate: Do you have written policy on religious accommodation? Of course, merely having a policy is never enough. You must communicate it to your employees, explain its meaning and operation, and enforce it when necessary.
Image courtesy of Jeffrey Weston’s Ape, Not Monkey http://www.apenotmonkey.com/2012/04/09/religious-accommodation/ |
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, June 1, 2015
6th Circuit: reasonable belief about unlawful conduct enough for SOX retaliation
It’s hard to imagine that in the eight-plus years I’ve written this blog, there is any area of employment law that on which I have not yet touched—except, I think, the Sarbanes-Oxley Act. Today, that changes.
For the uninitiated, Sarbanes-Oxley (or SOX) is a federal statute, enacted in reaction to a several corporate and accounting scandals (think Enron), which establishes conduct standards for public company boards, management and public accounting firms.
In Rhinehimer v. U.S. Bancorp Investments, Inc. (6th Cir. 5/28/15) [pdf], the 6th Circuit addressed the standard for protected conduct under SOX’s anti-retaliation provisions. Does the plaintiff have to prove an underlying fraud, or it is sufficient for the plaintiff to have a reasonable belief that a fraud was committed?
Although it is true that Plaintiff had no specific knowledge of whether Harrigan had omitted or misrepresented material information in his communications with Purcell, much less any knowledge of whether Harrigan did so intentionally or with reckless disregard, these gaps in Plaintiff’s knowledge are immaterial. Even if, in fact, everything about the trades were above board, courts universally recognize that [SOX] protects employees who reasonably but mistakenly believe that the conduct at issue constitutes a violation of relevant law.…
The information that was available to Plaintiff was more than adequate to allow him reasonably to believe that the trades were the result of conduct constituting unsuitability fraud. When USBII retaliated against him for reporting that information, it therefore violated Sarbanes–Oxley’s whistleblower protections.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, May 29, 2015
WIRTW #368 (the “let's go Cavs” edition)
It’s t-minus six days until championship fever sweeps the most victory-starved city in America. Let’s go Cavs!
Here’s the rest of what I read this week:
- Being “Qualified” Doesn’t Necessarily Mean Being Able to Perform “Essential Functions” of Job — via Dan Schwartz’s Connecticut Employment Law Blog
- Here’s Why Your Company Should Offer Paid Maternity Leave — via TLNT
- Private Employers Likely to Face Gender Identity Discrimination Claims as Federal Government Continues to Expand Title VII Protections to Transgender Employees — via Employer Defense Law Blog
- EEOC Will Now Process and Investigate Sexual Orientation, Transgender, and Gender Identity Claims — via Randy T. Enochs’s Wisconsin Employment & Labor Law Blog
Social Media & Workplace Technology
- Five Key Social Media Questions All Health Care Employers Should Consider: Question #3: How Do I Protect Patient Privacy On Social Media? — via netWORKed Lawyers
- Those without Facebook accounts need not apply. Well, maybe not in one state. — via Eric Meyer’s The Employer Handbook Blog
- Doing online “reputation management”? — via Walter Olson’s Overlawyered
- “Sixth Circuit creates circuit split on private search doctrine for computers” — via How Appealing
- What Companies Should Ask Before Embracing Wearables — via Harvard Business Review
- Cyber Insurance: Why you should require certain vendors to have it — via Privacy and Data Security Insight
- Don’t Tweet On Me! — via Employment Law Lookout
- Texting in the office: a problem, or just yet another distraction? — via Business Management Daily
HR & Employee Relations
- American Ninja Warrior – Lessons on Family, Life, & Work — via Rob Schwartz’s dadworking
- No Matter What Scrabble Says, Don’t Ever Use These 10 Words at Work — via Evil HR Lady, Suzanne Lucas
- Hilariously honest job posting admits the pay is ‘sh*t’ and the boss is a ‘d*ckhead’ — via Boy Genius Report
- The Pros and Cons of Mandatory Workplace Arbitration — via Abovethelaw.com
- Work/Life Balance and Lessons from Managing Two Careers — via YourHRGuy.com
- Millennials may not be the radicals you think — via Mike Haberman’s Omega HR Solutions
- Slowly but surely, workplace bullying laws are becoming a reality in the U.S. — via Minding the Workplace
Wage & Hour
- Wage and Hour Division Seeks Information on Smartphones’ Impact on Hours Worked — via The Wage and Hour Litigation Blog
- Wage-Hour Audits: Lessons Learned From Chipotle’s Heartburn — via The Wage and Hour Litigation Blog
- An Open Letter to the Department of Labor Concerning The Proposed Changes To Exemptions for White Collar Regulations — via Wage and Hour Law Update
- Third Circuit Defines “Overnight Stay” for FMLA — via Phil Miles’s Lawffice Space
- FMLA Leave: sometimes, it is about putting the pieces together — via Employer Law Report
- OSHA Publishes New Whistleblower Investigations Manual — via Employment Law Lookout
- OSHA Issues Spring Regulatory Agenda — via OSHA Law Blog
- The ACA Today: Where it Stands and How it Affects Employers — via ERC Insights Blog
Labor Relations
- General Counsel Responds to Labor Practitioners’ Questions — via Vorys on Labor
- Regional Directors Report Data on The NLRB’s Amended Election Rules After One Month – Court Challenges Continue — via Health Employment and Labor
- Video: What every new Wal-Mart employee hears about why unions are terrible — via Wonkblog
- Board Dismisses Six ULP Charges Against Am. Apparel — via Labor Relations Today
- Update: What Recent NLRB Activity Means for Employee Handbooks and Policies — via Intown Employer
- Is the NLRB is expanding its list of “inherently” concerted protected activities under Section 7? — via Employment Law Matters
- How We’re Voting on the Union, and Why — via Deadspin
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, May 28, 2015
A lesson on the importance of uniformity in performance standards
Under the ADA, and employer can require all employees, including disabled employees, to meet minimum qualification standards. According to the EEOC’s Q&A on Applying Performance And Conduct Standards To Employees With Disabilities, “an employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job,” and “lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, May 27, 2015
“You’re late again!” “Talk to my lawyer.”
I’m timely to a fault. I hate being late, and go to great lengths to ensure that I am never tardy for anything. I think it’s annoying to those around me, or least those I live with. Just ask my kids.
Do you have the opposite problem with your employees? Do you have employees who cannot show up for work on time no matter what? Well, it appears there might be a medical explanation for their chronic lateness.
Doctors have begun diagnosing individuals with chronic lateness, a condition caused by the same part of the brain affected by those who suffer from Attention-Deficit Hyperactivity Disorder. There has even been a study published supporting this diagnosis. That’s the bad news. The good news? The American Psychiatric Association does not recognize “chronic lateness” as a condition.
Of course, just because the APA hasn’t blessed chronic lateness does not mean that employees won’t try to use it as an ADA-protected disability. And, given how broadly the ADA now defines “medical condition,” they might have an argument to make. Don’t lose too much sleep over this, however. Just because an employee has a “disability” doesn’t mean you have to accommodate it. How do you accommodate a chronically late employee? Permit them to come late and stay longer? If you work production or other shifts, for example, that’s awfully hard to do.
Can I envision a situation in which the ADA will protect a chronically late employee and require that you provide an accommodation? Maybe. But, in the grand scheme of HR issues you need to worry about, this one falls pretty low on the scale. If nothing else, it shows just how broad the ADA has become in potentially covering a wide breadth of physical and mental health issues.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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